R v Mouawad

Facts

1. A statement of agreed facts was provided to the court and it is upon the basis of those facts that the offender will be sentenced. The deceased was born on 9 September 1946 and as at 18 February 2019 was aged 72 years. The offender is her son and he was aged 55 years at the time of the offending. They lived together in premises at Woonona along with her grandson (and the offender's nephew) who was then aged 24 years. The deceased had resided at the premises for about 45 years.
2. On the evening of 18 February 2019 the deceased cooked dinner for the offender and her grandson. After dinner, at around 5:30 PM her grandson retired to his bedroom and fell asleep not long after, leaving the deceased and the offender alone. The deceased and the offender had an argument which related to gambling and the deceased asked the offender to take her to the local RSL club. Between 5:30 PM and 6:20 PM the deceased was standing in the rear yard of the premises when the offender struck her multiple times (at least twice) to the head and face with a large piece of wood, intending to kill her. Sometime after the offender struck these blows, he wrapped the deceased's head in a plastic bag to try to stop the blood flow making too much mess. The deceased lost consciousness soon after she was struck.
3. Following the attack at about 6:20 PM, the deceased's sister-in-law came to see the deceased at her home. She arrived by car and when she pulled up she saw the offender in the front yard. The offender told her that the deceased had gone for a walk with Ellen (a friend of the deceased who would sometimes go for walks with her). This was a lie. The deceased had not gone for a walk with her friend. In fact the deceased was at that time laying, at least unconscious and possibly deceased, in the rear yard of her home.
4. Just prior to 6:50 PM the offender left home and drove to the Bulli Woonona RSL club which is only a few minutes away. At the time the offender left to go to the RSL club he did not know whether the deceased was dead or alive. He spent several hours at the club and left there at about 9:30 PM to return to the Woonona home. CCTV cameras captured the offender's attendance at the RSL club.
5. The offender arrived back at the home at about 9:35 PM. He again struck the deceased with a piece of wood to the head or face at least once. At this time the offender did not know whether the deceased was dead or alive (and, on the medical evidence, it is unclear whether at that point she was in fact dead or alive). The offender thought she was dead but wanted to make sure that was so, to shut her up, so that she could not say anything anymore or bother him for the rest of his life. At this time the offender hosed down the deceased and the area around her to try to remove blood staining. He put the piece of wood he had used to strike her some distance away from her body near a tree. He also removed the plastic bag from around the deceased's head and put the plastic bag, stained with the deceased's blood, into the boot of his car.
6. At about 10 PM the offender again left the home and returned to the local RSL club arriving at 10:06 PM. He entered the club. His movements at the club were captured on CCTV footage. At 11:18 PM he walked out of the RSL club and returned to his car. He removed the plastic bag stained with the deceased's blood from the boot of his car and put it in an outside bin before driving back to the home.
7. After the offender got home he hosed down the deceased's head and surrounding area to try to remove blood staining. In the process he wet the deceased. At 11:24 PM the offender called 000. He told the operator that "my mum's unconscious she fell over on, on her head…" He told the operator he did not know how it happened as he "went to the club and came home". He said that the deceased was on the concrete, her head bleeding. He was reluctant to perform CPR on the deceased stating "I can't do it, she's all wet… she's all soaking in blood all over her face". Ultimately, the offender was directed how to perform chest compressions on the deceased. The offender was lying to the 000 operator when he said that his mother had fallen and that he did not know how it happened.
8. Paramedics arrived at 11:31 PM. They asked the offender what had happened. The offender, again lying, said "I don't know". The offender also said he was trying to clean the deceased up. Paramedics found the deceased in the rear yard at the base of some concrete steps. There were no signs of life. Paramedics observed that the offender appeared to be very distressed and erratic and had difficulty staying on topic.
9. Various police attended the scene from about 11:50 PM. The offender lied to police and told them that he had gone to the RSL club at about 6 or 6:30 PM and had returned home at about 11 PM to find his mother lying in the backyard. Forensic police located the piece of wood that the offender had used to strike the deceased near a tree in the backyard. It was stained with the deceased's blood.
10. On the morning of 19 February 2019 at 6:19 AM, the offender participated in what would be the first of four recorded interviews with police. In this first interview he again lied to the police and told them he had gone to the RSL club at 6:30 PM and returned home at 11 PM to find his mother lying in the backyard in a pool of blood and that she was lying on the top of a garden hose that was running. He claimed that he did not know what was going on. He offered a false explanation for what happened to his mother being "So she's out the back somewhere watering, whatever. Somehow she's fallen down, someone's clobbered her over the head, whatever's happened".
11. Following this first interview police were able to ascertain, via CCTV, the offenders comings and goings at the Bulli- Woonona RSL club, including him retrieving a white plastic bag from his boot and walking towards an area where there was a bin, before being next seen on camera with no plastic bag. Police searched the bin and found a white plastic bag which testing confirmed was stained with human blood.
12. Armed with the above information police conducted a second recorded interview with the offender commencing at 2:37 PM on 19 February 2019. During this interview the offender maintained his false version of events namely that "… all I know is what I've seen… I come home, my mother's dead". The offender said that he was innocent and he had not done anything. He claimed falsely that while at the RSL he left the club and moved his car to a position further away in the carpark to smoke a joint of cannabis before re-entering the club. When told by police that they had footage of him driving out of the car park at 9:30 PM the offender invented another false version of events. He said that he had driven out and picked up two bags of cement that someone had left outside and that he had seen earlier in the day, before returning to the RSL club. The offender was asked about whether he did anything when he left the RSL club and he said that he got into his car and went home.
13. When shown CCTV stills of him retrieving a white plastic bag from his boot the offender said that he had used the plastic bag to wipe his mother's face so that he could give her mouth to mouth and that this was why there were bloodstains upon it. This was a lie. The offender said that he later disposed of the plastic bag because he did not want it in his bin. The offender was then told by police that the footage of him with the plastic bag at the RSL club was recorded at 11:18 PM but that his call to emergency services was not until after this at 11:24 PM. The offender then claimed that the bag shown on the CCTV footage was just another empty plastic bag. Police then told the offender that they had collected the bag and that it had bloodstains on it. The offender then again falsely claimed that he had deposited an empty white plastic bag in the bin earlier in the night and then a blood stained plastic bag later. He was then informed by police that the CCTV footage was contrary to his version of events as it only showed him going to the bin at the RSL club with a bag once.
14. The offender continued to adhere to his false version of events claiming that the CCTV cameras might have missed him earlier depositing the empty bag in the bin. He maintained that he did not take his mother's life. At the end of this second interview an independent officer not connected with the investigation asked the offender standard questions about the manner in which the interview had been conducted. During the course of those questions the offender said "I've committed a crime alright, I've murdered my mother alright, so they're going to send me to jail". At that point the independent officer stopped the interview while police obtained a detention warrant to extend the offender's time in custody and conduct a further interview.
15. After an extension of the offender's detention had been granted, the police conducted a third interview with the offender commencing at 8:02 PM on 19 February 2019. The offender admitted telling the independent officer that he murdered his mother but falsely claimed that he said it in the heat of the moment and had dreamt it up. He continued to deny killing his mother or injuring her in any way.
16. Following his arrest the offender was remanded in custody. While he was in custody he sent two letters postmarked 11 and 15 March 2019 to family members.
17. In the first of these letters the offender said "I myself can't believe God allowed me to do such an evil and cowardly thing", and "I am so sorry to have hurt you all" and "I am so sorry for what I have done, I am ashamed and truly sad at what has happened". In the second letter the offender said "MOTHER is in my heart forever. I don't care anymore what I did. It was a very bad and cowardly mistake. I honestly didn't want to hurt her or anybody else. After a few days I relised (sic) what I did. I obviously took mums life, and ruined all the family…"
18. On 15 March 2019 the offender's brother John and his wife visited the offender at Silverwater Correctional Complex. They asked the offender what happened. The offender said that gambling had got to them both, and they would go to the club and the deceased would say "another $20", and he would spend more of his money, and they would continue gambling. He said he snapped and grabbed the piece of wood and hit his mother with it.
19. On 9 April 2019 the offender participated in his fourth and final interview with police. Police put it to the offender that he had informed some of his relatives that he murdered his mother and the offender agreed. Asked by police to tell them what happened, the offender said "Uh it wasn't right, I wasn't thinking right, I don't know what happened. Um, you know, it's, it's a blur. It happened quickly. It happened fast… It was quick. I was not feeling well and that's it…" The offender told police he did not remember hitting his mother with a piece of wood stating, "… I don't know if she hit me… She might have hit me first, you know what I mean? I don't remember you know".
20. The offender was lying when he said he did not remember hitting the deceased with the piece of wood and was lying when he suggested that she had hit him first. The offender was asked to confirm whether he told his brother John and his wife that he had hit the deceased with a piece of wood. The offender said "… I told them that to tell them that they came up to prison to visit me. I told them that, that's what I'd done. But I don't remember what else I done".
21. Asked by police if he had hit his mother with a piece of wood the offender claimed falsely that he did not remember hitting her at all and that the deceased may have hit him first. He said that he and the deceased were involved in an altercation to do with her gambling issues but claimed falsely that he could not remember much else. He claimed falsely that he could not remember writing letters to family members, did not instigate what happened, that what happened was accidental and that he did not mean to hurt his mother.
22. A post-mortem examination of the deceased found the direct cause of death was blunt force head injuries. The injuries included: 1. A large area of complex bruising on the posterior head and involving the right ear within which there were three distinct well demarcated bruises, indicating that at least three separate blows were inflicted by the offender upon the deceased; 2. Fractures to various parts of the skull, the right cheek and the areas above the right cheek; 3. Bleeding in various spaces beneath the skull; 4. Contusions to various parts of the brain and brainstem; and 5. Bruising to the forehead, mouth, cheeks and jaw.

General principles

1. The offence of manslaughter is the most serious offence involving violence against the person that is dealt with in the District Court. It is an offence that covers a wide range of circumstances where the determination of an appropriate sentence has been described as "notoriously difficult": R v Green [1999] NSWCCA 97 at [24]. This is because the offence of manslaughter covers such a broad range of offending behaviour. In R v Blacklidge (unrep, 12/12/95, NSWCCA) Gleeson CJ said "Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability". It is offending of a type that is highly fact specific. That having been observed, the court cannot lose sight of the fact that the offence involves the criminal extinguishment of a human life. Further the court must not allow the subjective circumstances of an offender to divert it "from imposing a sentence which adequately reflects the part which the law must play in upholding the protection of human life and in punishing those who take it": R v MD (2005) 156 A Crim R 372 at [65].
2. Manslaughter is always a serious offence and the observations made by Dunford J in R v Dawes [2004] NSWCCA 363 at [31] bear repeating: "Manslaughter, whatever form it takes, constitutes unlawful homicide. It is always a most serious offence as it involved the taking of another human life and it is the responsibility of the courts to protect and preserve human life and to punish those who unlawfully take it. All human life is to be protected…"
3. As I have earlier noted murder has been reduced to manslaughter in this case by virtue of section 23A of the Crimes Act 1900. That is, while the offender had an intention to kill his mother and knew the difference between right and wrong, his capacity to control himself was substantially impaired by virtue of the bipolar affective disorder from which he suffers. Both of the psychiatric experts who gave evidence in the sentencing proceedings, Dr Allnutt for the Crown and Dr Furst for the offender are in agreement as to this diagnosis. I will have something further to say about the psychiatric evidence shortly but it is important to immediately note that while the offender's abnormality of mind ameliorates his moral culpability to some extent, it does not and cannot eliminate it. It is therefore necessary for me, as part of this sentencing task, to consider the degree to which the offender's mental condition was impaired beyond that required to establish a finding of substantial impairment such as to ground liability in a charge of manslaughter, as opposed to murder. A considerable amount of time was spent by the parties dealing with this issue during the sentencing hearing and I will return to it shortly.
4. It is also necessary for me to have regard, as part of the instinctive synthesis, to the general principles that are applicable in the sentencing of mentally ill offenders. It is well recognised that the fact an offender was or is suffering from a mental illness, disorder or disability can be taken into account on sentencing. An offender's mental illness can have the effect of reducing a person's moral culpability such that general deterrence, retribution and denunciation are given less weight. This is because such a person is not an appropriate medium for making an example for others. It is particularly so where the mental illness contributes in a material way to the commission of an offence, as is clearly the case here. Sentencing an offender who suffers from a mental illness, condition or disorder calls for a sensitive discretionary judgment involving the application of the facts of the case to the need to ensure, as best the court can, that the purposes of sentencing contained within section 3A of the Crimes (Sentencing Procedure) Act 1999 are met. Those purposes are punishment, general and specific deterrence, protection of the community, the promotion of the rehabilitation of the offender, the denunciation of the offender's conduct and the recognition of the harm done to the victim of the crime and the community more generally. Here, as is so often the case, these purposes pull in different directions.
5. In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177-178], the relevant principles concerning the sentencing of mentally ill offenders were gathered together by McClellan CJ at CL. He there said (citations omitted); 177. Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: … They can be summarised in the following manner: Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced. It may reduce or eliminate the significance of specific deterrence. Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: … Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public. 178. I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence.
6. In considering these principles it is important to have regard to what Simpson J observed in Aslan v R [2014] NSWCCA 114 at [34], that none of them are "stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability… There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for".

The psychiatric evidence concerning the offender's abnormality of mind

1. Dr Allnutt prepared two reports at the request of the Crown. They were dated 15 April and 1 September 2020. Dr Furst prepared four reports for the offender's legal representatives dated 14 May and 17 August 2019, and 7 August and 25 August 2020. In addition the offender relied upon an email from Dr Furst to the offender's solicitor dated 6 December 2019. The evidence of Dr Allnutt and Dr Furst both in their reports and in their evidence can be broadly divided into two areas. Firstly, their evidence touched upon matters concerning the offender's mental condition at the time of the offence and secondly his prospects of rehabilitation and the likelihood of his reoffending. I will return to the second of these issues shortly but for the moment I wish to briefly say something in respect of the conclusions reached by the psychiatrists as to the offender's mental condition as at 18 February 2019. Both doctors examined the offender and reviewed a variety of his medical records.
2. Each doctor related a similar psychiatric history of the offender. He first received medical treatment for his psychiatric illness in May 2001 when he presented at the Royal Brisbane Hospital with manic features including racing thoughts, difficulty sleeping, increased energy, problems with gambling, disorganisation, overfamiliarity, intrusive and loud speech and flight of ideas. Dr Furst opines that these symptoms were highly suggestive of a diagnosis of bipolar affective disorder. He was admitted to the mental health ward of the Royal Brisbane Hospital for a short period at that time and was prescribed antipsychotic medication. He continued to consult with mental health professionals during 2001 and 2002. He took his medication as prescribed for a number of years however appears to have discontinued doing so in about 2005. There is no suggestion that he had thereafter been medicated for his mental illness until he was taken into custody in respect of this matter.
3. Both Dr Allnutt and Dr Furst agree that the offender was suffering from bipolar affective disorder at the time of the offending. They both agree that he was manic at the time, although Dr Allnutt is of the view that he had a constellation of symptoms consistent with a mixed mood state which included both depressive and manic symptoms. Dr Furst is of the view that the offender was acutely manic both at the time of the offending and in the weeks following his arrest.
4. Both doctors agree that the result of the offender's mental condition on 18 February 2019 was increased irritability and impulsivity, and the loss of the capacity to control himself. In this regard Dr Allnutt opines that the offender was experiencing "low frustration tolerance and increased propensity to impulsive behaviour".

Objective seriousness

1. There can be no doubt that this is an objectively serious offence. It involved a significant degree of violence and aggression. There were multiple blows by the offender to the deceased with a weapon, being a large piece of wood. The use of a weapon is a statutory aggravating factor to be taken into account. It was not a single attack but a protracted one involving repeated strikes to the head of the deceased on two separate occasions separated in time by approximately three hours. Further, the deceased was vulnerable on account of her age. In my view there is a callousness displayed by the offender wrapping the deceased's head in a plastic bag and leaving her prone in the backyard of the family home, prior to his leaving to attend at the RSL club on the first occasion. This callousness is compounded by the offender's conduct on his first return from the RSL club that evening when he again struck his mother to the head to make sure that she was in fact deceased and then, in a particularly degrading and disgraceful way, hosed both her and the area around her to remove blood staining before then removing the plastic bag with a view to disposing of it. These acts demonstrate that the offender was by then seeking to "cover his tracks". The lie he told to the deceased's sister in law concerning his mother's whereabouts, shortly after he had struck her, along with his subsequent lies to investigators confirm this, and also make abundantly clear that he was immediately aware that what he had done was seriously wrong. His conduct throughout the entire incident was both purposeful and calculated. Importantly, I must not lose sight of the fact that all of this conduct was accompanied by what is agreed to have been an intention in the offender to kill his mother, in circumstances where he had the capacity to understand that his actions were wrongful but was unable to control himself.
2. The offending is aggravated in a not insubstantial way by the fact that it occurred in the home of the victim. I was told during the course of the sentencing proceedings that the deceased had lived in her home for approximately 45 years. It was somewhere that both she and the community would reasonably expect she would be safe and secure, particularly from members of her immediate family. It is also relevant to note that this is an example of extreme domestic violence. Domestic violence of any sort is a blight on our community and such conduct, when it involves taking of the life of a family member, strikes at the heart of our community and must be denounced. Such conduct "contravenes the fundamental values of a civilised society": Alexander Freeburn v The Queen (No 2) [2020] VSCA 176 at [46].
3. The Crown asserts that the offending is also aggravated by the fact that the offender has a record of previous convictions including for serious personal violence offences. In that regard the Crown points to the conviction of the offender in the Northern Territory in 1995 for an offence of assault occasioning actual bodily harm, for which he was sentenced to a term of imprisonment comprising a non-parole period of 9 months and a total term of 15 months. That offence apparently involved the offender striking someone with an iron bar. Mr Steel submitted that the Northern Territory offence had occurred a long time prior to the offending for which he is to be sentenced, and that his record overall did not demonstrate a continuing attitude of disobedience of the law as described by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 such as would warrant the imposition of a more severe penalty to give effect to the need for retribution, deterrence and community protection. In considering the respective submissions, I bear in mind that the common-law principle of proportionality requires that the sentence to be imposed upon this offender should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances. I am not persuaded in all circumstances, especially given the effluxion of time, that the offender's prior conviction for a personal violence offence can properly be taken into account by me as a statutory aggravating factor.
4. In assessing the objective seriousness of the offending I also have regard to the fact, upon which the parties agree, that it was not part of a planned or organised criminal activity. I will also have regard to the offender's mental illness in assessing objective seriousness. I accept the submission of Mr Steel that the commission of the offence is explicable only by reference to that mental illness. That is, if it were not for his mental illness, then the offence would not have occurred.
5. That having been observed, this is in my view a serious example of the crime of manslaughter involving as it did a high level of repeated violence towards an elderly woman in her home, separated as that violence was by some hours, during which time the offender attended at his local club. He understood the wrongfulness of what he had done and actively sought to conceal it. I have taken into account the fact that his mental illness is causally connected to the offending, and have concluded that the objective seriousness of the offence falls at a point above the mid-range of objective seriousness for offences of this type.

Moral culpability and the offender's mental condition

1. A live issue between the parties is the extent to which the offender's moral culpability can be further reduced on account of his mental condition, given that it has already been taken into account by reason of the Crown accepting a plea of guilty to manslaughter rather than the matter proceeding as a charge of murder. In considering this, I must ask myself whether the psychiatric evidence discloses impairment significantly beyond what was required to make out the partial defence of substantial impairment. The Crown submits that it does not, and Mr Steel submits that it does. Mr Steel says that absent his mental illness, the offending, which he concedes was neither rational nor proportionate, would not have occurred at all. He also points to what Dr Furst has described in his report of 25 August 2020 as "the complexities involved in the intersection of Mr Mouawad's chronic mental illness, acute manic and/or mixed affective state, and the stress he was experiencing in relation to real and/or imagined unreasonable demands placed upon him by his mother, including on 18/02/19".
2. I commence, as I must, from the basis that the offender's mental responsibility was "substantially impaired". Here there are features of the offending that point in the direction of the submissions made by each counsel. I must seek to balance those features, one against the other, in this sentencing task. In undertaking this assessment I will have particular regard to the repetitious nature of the violent conduct occurring as it did over an extended period, the offender's awareness that what he was doing was wrong, the agreed fact that he intended to kill his mother and what I have described as the purposeful, calculated and callous nature of the conduct. Set against these factors is my view that this crime would not have occurred but for the offender's mental condition, coupled with the complexities of his condition at the time as described by Dr Furst and to which I have earlier referred. I have concluded on balance that his mental impairment did extend beyond that required to make out the partial defence of substantial impairment, but that it did not do so to a significant extent. Rather, in my view it did so to a modest degree. That being so it should be given some further limited weight as part of the instinctive synthesis in reduction of the offender's moral culpability.

The plea of guilty

1. The offender entered his plea of guilty in the Local Court and is entitled, in accordance with section 25D (2) (a) of the Crimes (Sentencing Procedure) Act 1999 to a 25% discount on what would otherwise be an appropriate sentence to reflect the utilitarian value of that plea. He has remained in custody since his arrest on 19 February 2019 and the sentence to be imposed today will be backdated to commence from that date.

The victim impact statements

1. As part of the Crown sentence bundle I received victim impact statements of the deceased's daughter, her daughter-in-law and her granddaughter. Both the deceased's daughter and granddaughter read their statements to the court. Each of the victim impact statements were powerful and moving documents. They spoke lovingly of the deceased and of the enormous grief and distress that the authors have each suffered as a consequence of the offenders conduct, and of the dislocation and trauma occasioned to all members of their family by the offender's crime. There can be no doubt whatsoever that the offender's conduct has caused considerable harm, and the recognition of that harm should be reflected in the sentence imposed. The statements read in open court were particularly poignant. Of course harm has not only been caused to the Mouawad family, it has also been caused to the wider community. I will have regard to the impact upon the deceased's family as part of the instinctive synthesis.

The offender's subjective case

1. As I noted earlier the offender is aged 57 years. He is single and has no dependents. He was born in Palestine and is of Lebanese heritage. He migrated to Australia with his parents in 1964 when he was one-year-old. He is one of four children born to his parents union. On arrival in Australia his parents settled in the Illawarra. He attended school in that region until he left in Year 11. He then commenced an apprenticeship as a fitter and turner however did not complete it. Thereafter he worked in various manufacturing roles in different states although he had not been in paid full-time employment for many years prior to his offending. He reported to Dr Furst that he had been doing some casual odd jobs involving labouring and construction work in the building industry in the years prior to his arrest.
2. He first came to the attention of mental health professionals while living in Brisbane in 2001 and at that time was diagnosed with bipolar disorder. As I have earlier observed he remained medicated for some years but appears to have ceased to take his medication in about 2005. This coincided approximately with his returning to the Illawarra to live with his parents. Following his father's death he had been his mother's carer for a number of years and the material indicates that he generally had a loving and supportive relationship with her.
3. Much of the evidence given by both doctors Allnutt and Furst during the sentence proceedings concerned the offender's prospects of rehabilitation and his risk of reoffending. Both doctors noted that there has been a history of the offender not complying with medication prescribed for him. They both noted that the offender presents with a range of static and dynamic risk factors for re-offending. Those static risk factors include his previous history of mental illness, his history of substance abuse, his history of difficulty with relationships and his history of serious violence. The dynamic risk factors identified as likely to be present upon his release from custody include a lack of stable accommodation, a lack of stable intimate relationships, a lack of social support, the potential for further unstable mental health, the potential for non-adherence with medication as prescribed, and ongoing psychosocial stress including feelings of guilt and grief. The most significant risk factor for the offender in terms of re-offending relate to his unstable mental health and his history of inadequate control of his illness over a very long period of time.
4. In interviews with Dr Furst the offender has consistently indicated his remorse and deep regret for what he did and I have no reason to doubt that he is genuine in that regard. When he last saw Dr Furst on 2 July 2020, he was reported as more stable in mood with no signs of acute mania or psychosis. It would appear that his mental illness is being well managed while he is in custody, no doubt in part at least, as a result of his being required to comply with the taking of medication.
5. Both doctors agree that he has a moderate risk of re-offending. They also agree that if his mental health is controlled and managed then that risk is reduced and his prospects of rehabilitation will be improved. I agree with their assessments. Given the seriousness of his offending and his past history of non-compliance, I would assess his prospects of rehabilitation as cautiously hopeful. It will be necessary for him upon his release from custody to be assertively case managed in the community by mental health professionals. His prospects of rehabilitation and the reduction of the risk of his re-offending will be almost entirely dependent upon him complying with the treatment that he is provided including taking medication and attending for regular appointments with his treating psychiatrist. If that occurs then his prospects generally will be improved. Dr Furst is of the view that he should be the subject of a Community Treatment Order when he is released from custody. Dr Allnutt, in his report of 1 September 2020 expresses some concerns as to this, given his prior history of non-compliance with medication and suggests that entry into a psychiatric rehabilitation program upon his release from custody may be more appropriate. In either circumstance, the fact remains that the offender will require intensive engagement with mental health professionals upon his release.
6. It is the agreed position of the parties, and one with which I concur, that the offender's mental illness will mean that the period of time he spends in custody will be more onerous for him than it might be for other inmates. This is a matter that I will take into account in the way that I will shortly identify.

Special circumstances

1. I have been asked by Mr Steel to make a finding of special circumstances. The Crown accepts that such a finding would be open. The primary consideration in a finding of special circumstances should be the length of the minimum period of actual incarceration that is required to encompass the full range of issues relevant on sentence.
2. Notwithstanding the existence of special circumstances, a court is not permitted to reduce a non-parole period below what is necessary to pay regard to all of the purposes of sentencing.
3. I have concluded that a finding of special circumstances should be made in this matter for the following reasons which should be viewed in combination. It is my opinion that this offender will require an extended period of supervision in the community upon his release from custody to ensure that he is best placed to readjust to community life, particularly in circumstances where he is likely to be isolated from his family as a consequence of his offending. Such a finding is intended to ensure, as best the court can, that his ongoing need for treatment in respect of his mental health is met. An extended period of supervision in the community will ensure better monitoring of what will undoubtedly be a rigorous and extensive treatment regime. This will be in the interests of both the offender and the community. I have also had regard to the more onerous conditions of custody that the offender will experience as a consequence of both his mental illness and his isolation from his family.

Comparable cases/statistics

1. I was referred by the parties to a number of decided cases that were said may be of assistance in determining an appropriate sentence to be fixed here. I have considered all of those cases to which I was referred bearing in mind the limitations that doing so entails and which the High Court referred to in Hili v The Queen (2010) 242 CLR 520. In seeking consistency it is generally important for courts to have regard to what has been done in other cases. It is also important to bear firmly in mind that no two cases are identical. This is particularly so when considering the offence of manslaughter, where the nature of the offending varies so greatly and the range of sentences previously imposed is very wide. As was observed by the Victorian Supreme Court of Appeal in DPP v Yucel [2019] VSCA 53 at [59]; "The offence of manslaughter can be committed in a variety of different ways. It can also involve significantly different levels of moral culpability. Accordingly, more than most offences, there is a wide range of sentencing options available to sentencing judges."
2. Sentencing statistics for offences of manslaughter have been described as "of such limited assistance to sentencing Judges that they should be avoided": R v Wood [2014] NSWCCA 184 at [59] and "unhelpful and even dangerous": R v Vongsouvanh [2004] NSWCCA 158 at [38]. The consistency in sentencing that is always sought to be achieved is consistency in the application of relevant legal principles. While earlier decided cases provide a yardstick against which to measure the sentence to be imposed in any case, it is important to remember that the sentence ultimately fixed must be individual both to the objective circumstances of the offending and the subjective case of the offender.

Conclusion and orders

1. I have finally concluded that prior to allowing a 25% discount for the utilitarian value of the plea of guilty an appropriate total term of imprisonment in this matter is one of 12 years. Allowing for the 25% discount will reduce the total term of imprisonment that I regard as appropriate to one of 9 years. I have further concluded that an appropriate period of actual incarceration for the offender is one of 6 years imprisonment.
2. The orders I make in this matter are as follows: 1. You are convicted. 2. You are sentenced to a term of imprisonment which consists of a non-parole period of 6 years and a total term of 9 years commencing 19 February 2019. 3. You will be eligible for release on parole on 18 February 2025. 4. Your sentence will expire on 18 February 2028.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 October 2020