HER HONOUR: On 20 January 2019, Glen Smith died after a needless altercation with the offender Paul Newburn. Each man had behaved aggressively towards the other and there was a fight in which each was armed. Mr Smith was stabbed and died as a consequence of his injuries.
The offender appears before the Court today to be sentenced for unlawfully killing him. The Court was presented with an agreed statement of facts and, there being no other evidence to establish the circumstances of the offending, those are the facts upon which the offender must be sentenced. What follows is drawn from that statement.
[2]
The Agreed Facts
The fight that led to Mr Smith's death had its genesis in the offender's unreasonable refusal to allow his partner, Lisa Walker, to take her belongings from their shared accommodation after she had announced that she wished to end her relationship with him. The offender, who had injected himself with methylamphetamine the previous day and was perhaps still affected by it to some extent, told Ms Walker that, if she left, she could not take anything with her. She left the Bolton Point house in which they were staying without any of her property. Ms Walker walked to a public telephone box that was situated on the corner of Quigley Road and Threlkeld Drive in Bolton Point. The telephone box was located opposite the home Mr Smith shared with Michelle Bell on Threlkeld Drive.
Instead of allowing Ms Walker to leave as she wished the offender followed her to the telephone box shouting abuse at her. There is some evidence to suggest that he struck her although it is too unclear to find as a fact that this occurred. Ms Bell who had been sitting on the veranda of her home saw the dispute and called out to the offender to leave Ms Walker alone. Mr Smith came to Ms Bell's aid telling the offender to "fuck off". Ms Walker was escorted inside the deceased's house by Ms Bell. Inside Ms Walker complained that the offender had been violent to her in the past and she pointed to some bruises that she said he had inflicted. It is not clear if Mr Smith was present at the time.
An hour or so after this altercation, and again without any legitimate reason for it, the offender returned to the Smith/Bell house, inferentially to speak to Ms Walker. Instead he had an argument with Mr Smith. During the argument Mr Smith was overheard by a witness threatening to "punch on" with the offender and "bash him". Another witness who had heard the threat called police, with the call logged at 10.02pm. The offender returned to his accommodation. Ms Walker, who wished to recover her property, asked Ms Bell to go to her former accommodation with her whilst she gathered her things. Mr Smith offered to accompany them. Both women sought to discourage him, thinking that his presence may simply exacerbate the tension, but he insisted, offering however, to keep some distance behind them.
The three walked to the address on Leumeah Place where the offender and Ms Walker had been staying. Ms Walker went to the door at about 10.30pm and it was answered by Ronald Stewart, the householder. Mr Stewart refused to allow Ms Walker to enter and called out to the offender. The offender came to the door and argued with Ms Walker on the doorstep. He told her "she was not getting her stuff". Mr Smith had emerged from where he had been waiting and approached the door. He was armed with a makeshift weapon, a golf club from which the head was missing. Mr Smith began jabbing the club through the screen door of Mr Stewart's house, whilst Ms Bell and Ms Walker demanded Ms Walker's property. Mr Stewart was yelling at them to get off his property, warning them that "the cops are on their way". He slammed the wooden door closed.
Mr Smith struck the wooden door a number of times with the golf club and some pot plants at the front of the house were smashed. There was a great deal of yelling and shouting. Mr Stewart retrieved a homemade weapon he had and put it at the inside of the front door. The weapon consisted of 1.5 metre long curtain pole with a 30 centimetre long knife taped to the end of it.
The shouting in the street continued with Mr Smith, Ms Walker and Ms Bell getting into an argument at one point with a neighbour who told them to leave the street. Mr Smith, who had been drinking and was affected by alcohol, was aggressive during the altercation, moving as if to strike the neighbour with the golf club. Ms Walker prevented him from doing so and the three moved off, returning to Mr Stewart's house.
Ms Walker, Ms Bell and Mr Smith stood in or near the driveway of Mr Stewart's house shouting abuse towards the house. Although there was no rational reason to do so, the offender armed himself with the makeshift spear and left the safety of the house, approaching Mr Smith. The offender began to jab the spear at Mr Smith, with Mr Smith retaliating by jabbing the shaft of the golf club towards the offender. Ms Walker tried to diffuse the situation but the offender and Mr Smith continued to fight.
With one thrust of the spear the offender stabbed Mr Smith in his thigh. Mr Smith called out on being stabbed referring to the offender as a "fucking dog cunt". He tried to strike the offender with the golf club but the offender avoided the blow, instead spearing Mr Smith again, this time to his chest. The wound was a mortal one.
Mr Smith staggered for a few steps calling "he stabbed me". He fell to the ground. Emergency services were alerted with the first call to the Triple-0 operator placed at 10.45pm. Witnesses endeavoured to render first aid to Mr Smith, as the offender fled the scene, taking with him and then discarding the knife component of the weapon he had used.
Police and ambulance personnel arrived and began to attend to Mr Smith. He was transferred immediately to the John Hunter Hospital but, sadly, was pronounced dead shortly after arrival.
A later autopsy established that Mr Smith died as a consequence of a penetrating stab wound to the left side of his chest. The wound passed through the fifth rib, entered the chest cavity, and penetrated the pericardial sac and the left ventricle of the heart. Mr Smith had additionally suffered a stab wound to the front of his right thigh, some superficial cuts to his arms and right hand, and some bruises.
One day after the incident, on 21 January 2019, the offender contacted his mother and told her he needed to see her. They met at a fast food restaurant in Belmont and, on Mrs Newburn asking her son what was up, the offender told her "I fucked up really bad, have you heard what happened at Bolton Point? I'm really scared". Apparently alerted to the offender's presence there by a member of the public police arrived at the restaurant soon after and the offender was arrested. He refused to be interviewed by investigating officers, saying only that he had no injuries. The offender remained in custody thereafter.
The agreed facts conclude:
"It is accepted that the Offender had an intention to inflict grievous bodily harm at the time of the fatal stab wound. The plea of guilty to Manslaughter is entered on the basis of excessive self-defence."
The plea referred to was entered by the offender one working day prior to what would have been the commencement of his trial on an indictment charging him with Mr Smith's murder. The plea to manslaughter entered by the offender that day was accepted by the Crown in full discharge of the indictment. Ordinarily, a plea entered so late would attract little or no discount on sentence since the utilitarian value of it would have been negligible. However, the offender asked the Crown to accept his plea to the lesser charge when the matter was in the Local Court prior to committal. The Crown refused to accept it until the very late stage to which I have referred.
Although there was a limited utilitarian benefit in that chronology, and even a waste of the resources of this Court, which had set aside one month in which to hear the trial, the offender cannot suffer for that. Authority requires that his early willingness to plead guilty to the charge for which he now stands for sentence is acknowledged by the same level of discount on sentence as would have flowed had the Crown accepted the plea rather earlier than it did. The offender is entitled to receive the full discount of 25% on the sentence that would otherwise have been imposed upon him.
[3]
Other evidence in the Crown Case
The offender's criminal history is Exhibit B before the Court, supplemented by Exhibit C, his custodial record, and Exhibit D, a bundle of charge and sentence documentation. His adult criminal history dates from 2005 when the offender was dealt with before the Raymond Terrace Local Court for several offences, including possession of a prohibited drug, intimidating a police officer and assaulting a police officer. The sentence included a bond imposed pursuant to the then s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which the offender subsequently breached.
In the same year he was convicted of common assault, stalking, and failing to appear. A further bond was imposed for the stalking offence, with the offender required to accept directions as to drug and alcohol and anger management counselling, but the offender quickly breached the bond and was called up. Ultimately he served a short term of imprisonment. Another s 9 bond imposed at the same time for a second stalking offence also resulted in a supervised bond that was breached by the offender. Convictions were also recorded for offences of assault occasioning actual bodily harm and two counts of having custody of an offensive implement in a public place.
Later, in 2005 and into 2006, the offender was before the courts for offences of larceny, damaging property and failing to appear. A further bond, this time requiring the offender to enter a residential rehabilitation facility for his drug and alcohol addictions, was imposed. In 2007, the offender was again convicted for offences of stalking, assault, and failing to appear, together with offences of entering enclosed lands and resisting police. A bond coupled with terms of imprisonment were imposed upon him; special circumstances were found to substantially reduce the minimum term, with the requirement that the offender undertake a residential rehabilitation course when released to parole.
The following year, 2008, the offender was fined for a shoplifting offence. Offences of aggravated break, enter and commit a serious indictable offence, and break, enter steal in 2009 saw the offender again incarcerated, for an overall term of four years with a non-parole period of two years and six months imposed. Further, partially cumulative terms of imprisonment were also imposed in 2009 for a number of counts of obtaining a benefit by deception and a series of drug-related offences, possession of a prohibited drug, introducing a drug to prison and introducing a syringe to prison.
On his release the offender was again criminally charged with offences of take and drive, possessing implements, having custody of a knife in a public place and engaging in a police pursuit together with some traffic offences. A custodial term was imposed.
On his release, further offending led to further convictions for offences of stalking and damaging property in November 2013. Supervised bonds were again imposed. Those bonds were also called-up following breaches.
In November 2013, the offender was convicted and placed upon yet another bond for an offence of contravening an Apprehended Domestic Violence Order. The bond was called-up in 2014; a further bond was imposed, and that bond too was breached by the offender.
Other offences committed by the offender in 2013 included offences of assaulting a police officer and resisting a police officer, both of which were penalised by short custodial terms. A charge of larceny from later in 2013 attracted a supervised bond, later called-up for breach, whilst an offence of entering prescribed premises was reflected by a conviction. Further sentences of imprisonment were imposed in 2014 for offences of assault occasioning actual bodily harm, contravening an Apprehended Domestic Violence Order, assaulting a police officer, and resisting a police officer. Two counts of damaging property attracted section 9 bonds, which were later called-up following breaches.
In 2015, the offender faced the District Court and was sentenced for break, enter and steal, aggravated break, enter commit serious indictable offence, and break, enter commit serious indictable offence. Offences of disposing of property, obtaining a benefit by deception, using a weapon to prevent apprehension, and a further offence of break enter commit serious indictable offence were all taken into account on sentence.
The offender was back before the criminal courts in May 2018 for contravening an Apprehended Domestic Violence Order. He was again given the benefit of a supervised bond directed to assisting him with drug and alcohol rehabilitation. Although it is not recorded in the criminal history, it appears from exhibit D, unless it is a duplicate entry, that a further offence of contravening an Apprehended Domestic Violence Order was dealt with in May 2018 by way of a Community Corrections Order. That order too was breached and a warrant issued on 10 January 2019. The warrant was executed on 22 January 2019. The protected person relevant to the order contravened by the offender was Ms Walker.
The offender was further dealt with in 2018 for a drink driving offence and, in early 2019, for having goods in custody, having custody of a knife in a public place, and failing to appear. Short terms of one month imprisonment for each were imposed, commencing on 21 January 2019 and expiring on 20 February. A sentence of 4 months imprisonment was imposed for the offence already referred to of contravention of an Apprehended Domestic Violence Order, which also commenced on 21 January, expiring on 20 May 2019. The warrant that brought the offender before the Court for that offence was current when Mr Smith was killed, the offender being at large at that time.
These last offences have particular relevance to the sentencing exercise. Firstly, the sentences imposed account for part of the time that the offender has spent on remand with respect to Mr Smith's killing, from the date of his arrest on 21 January 2019 to the expiration date of the longest of the sentences, 20 May 2019. The second of those features is that the applicant was at large at the time of the present offending, with warrants having been issued for his arrest, that being a feature that heightens the criminality involved.
The Court also heard from Mr Smith's mother, Ms Lane, and his widow, Ms Bell, who told the Court of the impact that the offence has had upon each of them and upon Mr Smith's family more broadly. The sense of grief and loss continues to affect Mr Smith's family, who suffered and continue to suffer from his violent death. I extend the Court's sympathy to the family.
[4]
The Case for the Offender
The offender both gave evidence to the Court and tendered a quantity of documentary material.
Dr Richard Furst, a forensic psychiatrist, saw the offender in July 2019 and again last month to assess him and prepare a report for use on sentence.
The doctor took a history from the offender, with the offender deposing before this Court as to the truth of that history.
The offender reported growing up in the Newcastle area for a period, with many periods in which the family relocated to other areas because of his father's military service. The offender's mother works in Education. As a child, the offender suffered from an inability to concentrate in class and from involuntary twitches and tics, which had an adverse impact on both schooling and family life. Dr Furst is of the view that the offender suffered from undiagnosed Attention Deficit Hyperactivity Disorder ("ADHD") and Tourette's Syndrome. These conditions led to problems at home and school and the offender left school in Year 9, and home shortly afterwards. He worked on and off subsequently, with the most stable employment being a period of about five years spent working as a professional fisherman on fishing trawlers with his father and brother.
It seems to have been drug use that contributed most significantly to the offender's vocational instability and to his criminal history. He began to use cannabis at age 12 or 13 years, but took up methylamphetamine and heroin use at about the age of 16 or 17 years as a means of coping with a traumatic experience suffered when on remand in a juvenile detention facility. The offender told Dr Furst and the Court that he was sexually assaulted by a staff member in the facility in which he was briefly detained as a teenager, an experience which was so devastating as to propel him into heavier and more serious drug use. His use of a virtual pharmacopeia of drugs, including benzodiazepines and methadone, continued despite the many rehabilitative interventions directed by the courts over the years.
The offender is now seeking formal redress for what occurred to him in juvenile custody with the assistance of an organisation known as the Liberty Justice Group, who have provided a letter of support as Exhibit 4.
The offender told Dr Furst that the present offence occurred within the context of an argument with Ms Walker. He described himself as "in shock" when Mr Smith, Ms Bell and Ms Walker were outside the house he was staying in, and said he became fearful that they would break into the house and hurt him and Mr Stewart. He took the decision to arm himself and go outside. He said that he has never stopped regretting that decision.
Dr Furst recorded that:
"[…] when assessed last year, Mr Newburn stated, "I'm shattered. I never dreamed of this. I've been having nightmares constantly." He did not know Glen Smith and felt terrible about what the deceased's mother and family would be going through. He said he had panic attacks if he watches violent content on TV last year, finding it difficult to breathe and having a racing heartbeat. He is now able to watch violent content. His nightmares continued for several months and then stopped towards the end of last year.
At the time of recent assessment on 23 November 2020 Mr Newburn said he still thinks about the events in question every night. He said he thinks about what he could have done differently and regrets his actions, becoming tearful when talking about the death of Glen Smith. He said, "It's hard to deal with, what his family are feeling. I'm the one who caused all this, I think I deserve to feel this way. I never meant to do what I did, it was never intentional."
The offender gave evidence to that effect during the sentence proceedings before me yesterday.
Dr Furst has diagnosed the offender with Substance Dependence, ADHD, and Tourette's Syndrome.
Since going into custody the offender has tried to better himself by undertaking such courses as he can, and he has now completed EQUIPS Aggression, a first aid course, and a number of Bible-related courses. He engages regularly with the Prison Chaplaincy Service and finds some comfort in biblical teachings and his Christian belief.
Extracts from the records held by Corrective Services New South Wales - Exhibit 5 - note that the offender has engaged positively in the EQUIPS course, expressed his desire to change himself, and offered solutions for his addictive behaviour. He was assessed to be "determined to change", positive and enthusiastic during course work, and was regarded as having completed all course work" to a high standard".
The offender's mother, Roselea Newburn, has observed a hopeful change in him. In her letter to the Court - Exhibit 6 - she referred to the "rollercoaster" that has been her son's life of drug addiction but believes that he has "finally gotten off that ride". Mrs Newburn is convinced that the offender will maintain the more positive outlook on life that she has seen emerge in him.
The offender told the Court that the events of 20 January 2019 had changed his life and the lives of others and he was sorry for it. Directing his gaze to Ms Lane he said he wished particularly to apologise to her. He said that knowing now what the consequences of his actions had been, he wished he had chosen one of the other courses of action open to him, including simply running out of the back door of Mr Stewart's home.
He said that he continued to be supported by family members, with his parents, brother and daughter present in Court yesterday. His hope for his eventual release is to start a business with his brother and make a better future for himself and his family.
[5]
Consideration
All offences of manslaughter are serious because a human life has been taken often, as here, violently. The maximum penalty specified by the legislature, one of 25 years imprisonment, reflects the community's concern at the violent loss of life.
With every manslaughter the community is diminished; there is loss and grief. That sense of enduring grief, expressed so eloquently by Ms Lane yesterday and Ms Bell in their respective victim impact statements, provide clear examples of why manslaughter carries such a significant penalty. Here, a family has lost a son, a father, a brother, a grandson, a nephew, a husband and a cousin. As Ms Lane said, the heartache will go on forever.
The sentence imposed today will not stop that heartache. No sentence could reflect the value of Mr Smith's life by reference to so many years and so many months imprisonment. It can bring what I do not doubt has been a very distressing time of involvement with the criminal justice system to an end. I hope that will be of some comfort to the family.
An offence contrary to s 18(1)(b) of the Crimes Act 1900 (NSW) encompasses a wide range of conduct and it is necessary to make some assessment of the objective gravity of this particular crime.
The plea was accepted by the Crown on the basis of excessive self‑defence. That is, the offender believed he had to act as he did in his own defence (and perhaps in Mr Stewart's defence); his act caused Mr Smith's death; and the act was not a reasonable response to the circumstances as the offender perceived them to be.
For a number of reasons this is an objectively grave example of manslaughter by excessive self‑defence.
The events that led to the altercation between the offender and Mr Smith came about because of the offender's refusal to allow Ms Walker to leave their shared accommodation and to take her property with her, as she was entitled to do. Had he learned anything from his previous convictions for domestic violence offences, including the contraventions of the apprehended domestic violence order in place to protect Ms Walker, the events subsequent to his refusal to allow her to take her property with her on leaving would never have taken place.
The likelihood of an altercation was only increased by the offender's second attempt to make contact with Ms Walker, at a time when he was aware that she was under the protection of Mr Smith and Ms Bell. Again, had the offender accepted that Ms Walker was entitled to leave him if she so chose what followed on this night would not have occurred.
At the point at which the offender left the safety of Mr Stewart's house to confront Mr Smith he had a number of other, more sensible and less objective dangerous choices available to him. The most obvious was simply to remain inside the house. Whilst Mr Smith had struck the front door of the property with the golf stick and there was a great deal of noise and smashing of pot plants outside, no attempt had been made by him, or Ms Walker, or Ms Bell to force entry to the premises. Police had been called and in those circumstances there was no rational basis for the offender to leave the safety of the house and approach Mr Smith. As he said himself in his evidence, he could have simply gone out the back door.
However, the offender was in a state of panic and appears not to have considered the more rational choices that might have been open to him. He chose to leave the house and confront Mr Smith and to do so having armed himself with a much larger and significantly more dangerous weapon than that which Mr Smith was carrying. Mr Smith was armed with what amounted to a short metal pole. The offender armed himself with a homemade spear of close to two metres in length.
I note that whilst the Court was urged to have regard to the fact that Ms Bell was armed with a knife, there is no evidence that any knife that she may have carried was ever seen by the offender. Given the state of uncertainty in the evidence on that point the Court cannot conclude that Ms Bell was armed, much less that the offender knew that she was.
The offender's response to the threat that he perceived existed very significantly exceeded a reasonable response. His moral culpability for the offence is high.
For those reasons I cannot accept the submission that this offence falls below the mid-range for manslaughter. Insofar as gravity may be expressed by a place in a notional range, this offence in the Court's assessment falls at or perhaps a little above the mid-range.
Having regard to the offender's extensive criminal history, containing as it does convictions for offences of violence, and noting his status as a person at large and wanted by warrant, a measure of specific deterrence is called for. There is always a need for general deterrence to play a role in the determination of sentence in a matter such as this since others in the community must be deterred from acting in this precipitate and dangerous way, to the destruction of life.
The sentence to be imposed must, however, be ameliorated by the mitigating features of the offender's case.
I have already referred to the offender's early offer to plead guilty to Mr Smith's manslaughter. He must receive a reduction of the sentence that would otherwise have been imposed of 25%.
There is evidence, which I accept, that the offender is remorseful. He gave Dr Furst a credible account of his daily ruminations over his responsibility for Mr Smith's death and the wider distress that his death has caused. In this Court the offender struggled to hold back tears when Ms Lane read aloud her victim impact statement. During his evidence the offender extended to Ms Lane an apology for killing her son, which was clearly heartfelt. True remorse, as I accept exists here, goes a long way to make good a wrong, insofar as that can ever be possible in circumstances such as these. Ms Lane hoped that in hearing of the loss her family had suffered the offender would see the pain and heartache he had caused. It seems to me that that hope has come to fruition.
Although it is rarely open to a court to do so, I also accept in the unusual circumstances of the offender's case, that his substance dependence mitigates his culpability to a degree.
Drug use is ordinarily not available - for very good reason - to an offender as a feature which mitigates crime. In the Court's conclusion the offender's case falls into the very small number of matters where it can operate in that way.
In evidence that went unchallenged and untested by the Crown the offender said directly, and through Dr Furst's report, that he had turned to heavy use of methylamphetamine, heroin and other drugs as a means of helping him cope with the trauma of sexual abuse as a child. A drug habit acquired in childhood as a response to the of horror of sexual assault can be given weight as a mitigating feature: Hayek v R [2016] NSWCCA 126 at [75]-[80].
Although there is no direct causal link, on the evidence of Dr Furst his drug addiction is nevertheless a relevant feature. The doctor said of the offender:
"[…] there is a strong relationship between being sexually abused in childhood and the subsequent onset of mental disorders and substance abuse in adolescence and adult life. This causal relationship is complex with individual factors, parenting, other abuse or trauma issues, all being relevant considerations. However, it would appear likely that the increased level of substance abuse evident in Mr Newburn from the age of 16 or 17 years onwards was likely triggered by his sexual abuse and victimisation and contributed towards a more reckless pattern of drug use and related criminal offending over the following years.
The offender's undiagnosed childhood disorders are also relevant, again accepting Dr Furst's opinion to that effect. The doctor said:
"[…] there is relatively strong correlation between the presence of ADHD in childhood and the subsequent onset of drug addiction in adolescence and in adult years. Adolescents and adults who have a history of childhood ADHD have approximately two to three times the lifetime incidence of drug dependence compared to individuals of similar age with no childhood history of ADHD, suggesting that Mr Newborn's ADHD, which was not diagnosed and was essentially untreated, predisposed him to the later onset of drug abuse and drug addiction".
These features seem to have coalesced and influenced the offender to make the choice to leave the safety of the house and confront Mr Smith, a choice that is otherwise difficult to understand, and which was, tragically, fatal.
On that point, Dr Furst opined that:
"[…] the offender's relationship discord and the sudden realisation of the separation from Ms Walker likely precipitated acute emotional distress in Mr Newburn, meaning he was far from calm and balanced at the time of the offending in question. His emotional distress in this respect is relevant in relation to his subjective state of mind and his appraisal of real or imagined threats from the victim, Glen Smith, or associates of Mr smith at the time of the alleged offence.
In my opinion, there were no indications that the offender's ADHD, Tourette's Syndrome or his drug addiction and methylamphetamine abuse were directly causal of his actions. The relationship between those Disorders and his offending being indirect, that is the presence of the Disorders and the methylamphetamines contributed to emotional deficits that likely made him more sensitive to real or perceived threats and also diminished his capacity to think of alternative courses of action at the time.
Having been now diagnosed, it seems likely that the offender can receive appropriate treatment. Further, although the road to abstinence to illicit drug use is a hard one to pass along the offender has taken significant steps in the right direction. He is willing to pursue counselling. He has already done some work in that direction and he has the support of his family and his church to do so.
Whilst his long history of offending against the criminal law and the many opportunities for drug rehabilitation offered to him and lost suggests caution. The offender does have, in my opinion some positive prospects of rehabilitation. I am persuaded that he is more determined that he has previously been to make a better life for himself and for his daughter.
For assistance in determining the appropriate sentence the Court was referred to other decided cases. Comparisons between the incident case and others can be useful, but the exercise should always be undertaken with caution: R v Trevenna [2004] NSWCCA 43; (2004) 149 A Crim R 505.
One decision counsel for the offender urged upon the Court as comparable was R v Aljubouri [2019] NSWSC 180. I did not find that case particularly helpful, however. Although Aljubouri was a case of manslaughter on the basis of excessive self-defence, the facts were different to the present instance and render it a less serious example of manslaughter. In Aljubouri the offender, who was unarmed, was attacked by a man wielding a machete and he had to struggle for his life to disarm the deceased, whom he subsequently stabbed at a point when the threat was diminished. Mr Newburn, by contrast, was not under direct attack initially. He chose to confront Mr Smith and did so armed with a much more lethal weapon than that which Mr Smith had.
The Court was also referred to R v Cook [2012] NSWSC 480, but the dissimilarities between that case of gang related violence and the offender's circumstances make any comparison of limited utility.
Ultimately, the sentence falls to be assessed by reference to the facts and circumstances of this matter, which I have already set out.
In imposing sentence I intend to vary the ordinary ratio of sentence pursuant to s 44 of the Crimes (Sentencing Procedure) Act because the offender will, in my view, need a longer period of supervision and support in the community than is usual to make the transition to a law abiding lifestyle, bearing in mind the formerly entrenched nature of his addiction, and the use made by him of drugs as a means of anaesthetising himself from childhood trauma.
The commencement date will be 20 May 2019, the first day of pre-sentence custody referrable solely to this matter. Whilst it is open to the Court to impose a concurrent sentence with the sentences imposed in early 2019, I have chosen not to take that approach because the separate sentences imposed in the Local Court have no commonality with the present offending, and because there should be distinct punishment for each. Further, the sentences were so short the totality principle is barely engaged.
[6]
Sentence
The offender is convicted of the unlawful killing of Glen Smith on 20 January 2019 at Bolton Point in this State.
The offender is sentenced to a term of 9 years imprisonment to date from 20 May 2019 and expiring on 19 May 2028, with a non-parole period of 5 years and 9 months expiring on 19 February 2025.
[7]
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Decision last updated: 18 December 2020