R v Phanekham

[2014] NSWSC 508

Supreme Court of NSW|2014-04-10|Before: Beech-Jones J, Gleeson CJ

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2014-04-10

Before

Beech-Jones J, Gleeson CJ

Source

Original judgment source is linked above.

Judgment (14 paragraphs)

[1]

Judgment 1On 20 November 2013 the offender, Viengsavanh Phanekham, was arraigned on an indictment that charged him with the murder of Mark William Puffett at Ambarvale on 20 June 2012. Mr Phanekham pleaded not guilty. The trial proceeded. 2On the afternoon of 29 November 2013 the jury returned with a verdict of not guilty to murder, but guilty to manslaughter. The proceedings were adjourned to 28 February 2014 for submissions on sentence. Both parties requested that and another date be vacated. Submissions on sentence were presented on 10 April 2014. 3The maximum penalty for the offence of manslaughter is imprisonment for twenty-five years (Crimes Act 1900 (NSW), s 24). There is no standard non-parole period for the purposes of s 54A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the "Sentencing Act") for manslaughter.

[2]

Background 4As at 20 June 2012 the victim's de facto partner, Ms Calleja, her son aged 17, and her two youngest children lived at a house in Martha Way, Ambarvale. The victim, Mr Puffett, was the father of her two youngest children. He had previously lived in the house but had recently left. The offender lived next door. 5During 20 June 2012 Mr Puffett consumed alcohol continuously. He arrived at Ms Calleja's home at 2:30pm. He was drunk. Ms Calleja left the house and collected her two youngest children from school. She returned to the house. Mr Puffett played and talked with the children until around 4:30pm when he left. Mr Puffett returned to the house at around 7:00pm. He had been drinking in the meantime. 6By this stage he was very intoxicated. He was described by some of the witnesses as being "paralytic drunk", staggering and stumbling. A blood alcohol sample taken after his death revealed a blood alcohol reading of 0.268 grams per 100 ml. 7There is no doubt that in the immediate hour or so before his death at around 9.20pm Mr Puffett's behaviour was erratic. Ms Calleja recalled that he was at times telling her that he loved her, and at other times stating that he hated her. In cross examination she agreed that he was verbally aggressive. At one point he smashed a picture and cut his hand. He wiped blood on the front and back of Ms Calleja's blouse. Later he left the house, went downstairs and banged on the door to the garage which Ms Calleja's son used as a bedroom. He went inside, abused Ms Calleja's son and accidentally smashed a coffee table. Ms Calleja was able to manoeuvre him out of the garage. She also said that at one point he had his hands around her throat. She told him to leave. She went back into the house and closed both doors, but Mr Puffett kicked the door open. Ms Calleja said that he went back out of the house, back down the stairs and banged on the door of the garage using both his hands and his fists. 8When she gave evidence it appeared that Ms Calleja was being protective of Mr Puffett's memory. She sought to deflect the suggestion that he was aggressive. Instead she sought to portray him as highly intoxicated and loud, but otherwise relatively harmless. However, I am satisfied that in the period immediately preceding his death Mr Puffett acted aggressively and at times was violent. 9Later that evening, the offender participated in an "electronically recorded interview with a suspected person" with the police (the "first ERISP"). The offender stated that he had been at home playing an on-line video game for a number of hours when he heard Mr Puffett next door. He said that he yelled out "Shut the fuck up" twice. He said that Mr Puffett yelled out something to the effect of "[c]ome out to the fuckin' front yard, I'll fucking kill you". In his first ERISP the offender said he took a knife from his home and went into the street. In another ERISP conducted early on the morning of 21 June 2012 (the "second ERISP"), he said he took two knives. 10Sometime between 9.10pm and 9.22pm on 20 June 2012 there was a confrontation between the offender and Mr Puffett in Martha Way. However, other than the participants, it was not directly observed by anyone. One of the neighbours was observing the two men, but her view of the spot where they came into contact with each other was obstructed. She did observe Mr Puffett "shadow boxing" and performing karate-like moves just prior to the confrontation. She also recalled Mr Puffett yelling out "[c]ome on, come out and have a go. I'll fucking fight you". 11The next observation of Mr Puffett was of him running back to Ms Calleja's house. He was heard by Ms Calleja's son to be screaming out "I've been stabbed, I've been stabbed" and "someone is trying to kill me" as he ran past the garage door and up the stairs of Ms Calleja's house. In his first ERISP Mr Phanekham told the police that he followed the deceased at this time "yelling crap out at him" and he stood "just where his front porch is", ie on the lawn, yelling at him. Ms Calleja also saw the victim running across the lawn and a person she later found out was the offender following him. She said the offender ran up the steps to her house. I am not satisfied beyond reasonable doubt that he ran that far. 12Ms Calleja let Mr Puffett into her home. He had one stab wound to his lower abdomen. It must have been a horrendous scene. Parts of his digestive system had fallen out of the stab wound. He died very soon afterwards. The stab wound had an approximate depth of 10.5cm and length of 5.9cm. The wound was crescent shaped with a maximum width of 2.3cm. The forensic pathologist called at the trial, Dr Irvine, stated that the cause of death was the effects of the stab wound. 13The offender returned to his house. He cleaned blood from the knife and his hands. He called his brother. He sent a message to a friend with whom he had been playing the on-line video game. At around 9:22pm he phoned '000' and told the operator that he had "just stabbed someone" and that the other person "ran at me and I just pulled out a knife". 14The police and ambulance arrived at the scene very soon afterwards. Mr Puffett died either prior to or shortly after their arrival. The police found the offender in his house. They recovered a knife from his kitchen. The knife's dimensions matched those of Mr Puffett's stab wound. 15At 11:34pm on 20 June 2012 the offender participated in the first ERISP. I have already referred to parts of it. Early in the morning of 21 June 2012 the offender participated in the second ERISP. As noted, during that ERISP he disclosed that he had taken a second knife to the confrontation. Another knife was seized from his kitchen, but the dimensions of this knife were such that ultimately it was not alleged that it was used to stab Mr Puffett.

[3]

Issues at the trial and findings 16From the beginning to the end the Crown case was that the offender deliberately stabbed Mr Puffett in the upper abdomen because he was angry and fed up with his annoying behaviour. The Crown alleged that he stabbed Mr Puffett once with the intention of killing him or inflicting grievous bodily harm. 17The first issue for the jury's consideration was whether it was the deliberate act of the offender that caused the death of the victim. In his first ERISP the offender stated that he simply pointed the knife at Mr Puffett and he "came towards me" and "walked into it". The offender made other statements to the police to similar effect. The Crown did not seek to have the jury consider a case of murder on the basis that the relevant act of the offender was the display of a knife at the scene of the confrontation, undertaken "with reckless indifference to human life". Accordingly, the jury were instructed that they had to be satisfied beyond reasonable doubt that the "accused deliberately inserted the knife or knives into the deceased's abdomen", and that if they were not so satisfied then the offender had to be acquitted of both murder and manslaughter. It is clear from the verdict that the jury was satisfied beyond reasonable doubt that the offender deliberately inserted a knife into Mr Puffett. 18The jury were also instructed that to find the offender guilty of murder they had to be satisfied that the act causing death, namely the insertion of a knife into Mr Puffett's abdomen, was done with an intention to kill or to inflict grievous bodily harm upon him. In that context they were instructed that any intoxicated state of the offender had to be taken into account in determining whether he was capable of forming that intention. In his first ERISP the offender stated he drank approximately half a bottle of bourbon between 4:00pm and the time of the killing. He also stated this in the '000' call he made shortly after he returned to his house A photograph of his home reveals an empty bourbon bottle. I am satisfied that he consumed what he stated. 19At the trial, a pharmacologist, Dr Pearl, calculated that, assuming he consumed that amount of alcohol, the offender would have had a blood alcohol reading of 0.176 at 9:15pm, and a reading in the range of 0.119 to 0.182, with a median of 0.140 at the time he commenced his first ERISP. The jury also had available to it the video of the ERISP, the audio of the '000' call, and the observations of the police officers who attended at the scene and conducted the interview as to his state of intoxication. Those officers had denied that the offender displayed signs of being affected by alcohol. 20The jury were also instructed that to prove the charge of murder the Crown also had to prove that the act causing the death of Mr Puffett was not carried out in self defence. The issue of self defence arose because, as I have stated, in his first ERISP the offender stated that the confrontation escalated when Mr Puffett yelled out to him "[c]ome to the fuckin' front yard, I'll fucking kill you", and that he responded by taking one or two knives with him. The offender also stated that when he confronted Mr Puffett, Mr Puffett was angry and acted as though he was "goin' to punch me or some shit or hit me". This all took place in a context that Mr Puffett had been aggressive with his family and was observed by a neighbour to be aggressive as he awaited the confrontation in Martha Way. 21Accordingly, the jury were instructed that to disprove self defence the Crown had to prove beyond reasonable doubt that (i) the offender personally believed his conduct was necessary to defend himself; and (ii) the conduct was a reasonable response in the circumstances as the offender perceived them. The jury was also instructed that any intoxicated state of the offender had to be taken into account when determining whether he believed that his conduct was necessary to defend himself, and in determining the circumstances as the offender perceived them, but could not be taken into account in determining whether his response to those circumstances was reasonable. 22The instructions to the jury were such that, if they found beyond reasonable doubt that the offender deliberately inserted a knife into Mr Puffett's abdomen, then there were two alternatives by which the jury could have returned a verdict of manslaughter. 23The first alternative was if the jury was not satisfied beyond reasonable doubt that the offender intended to kill Mr Puffett or inflict grievous bodily harm upon him, but nevertheless was satisfied that the offender's conduct in stabbing Mr Puffett was an unlawful and "dangerous" act (ie manslaughter by an unlawful and dangerous act). The jury were instructed that an act was "dangerous" if a reasonable person in the position of the offender would have realised that, by that act, Mr Puffett was being exposed to an appreciable risk of serious injury. The jury were advised that in making such an assessment any self-induced intoxication of the offender was irrelevant. 24The second basis for manslaughter was if the jury was satisfied beyond reasonable doubt that the offender intended to inflict death or grievous bodily harm upon Mr Puffett, but also considered that there was a reasonable possibility that the offender personally believed his conduct was necessary to defend himself, while being satisfied beyond reasonable doubt that his conduct was not a reasonable response in the circumstances as he perceived them (ie excessive self defence). 25Accordingly, I must determine upon which basis the offender will be sentenced for the crime of manslaughter. The findings I make must be consistent with the jury's verdict, and any finding of fact "made against an offender must be arrived at beyond reasonable doubt" (Cheung v R [2001] HCA 67; 209 CLR 1 at [14] per Gleeson CJ ("Cheung"), citing R v Isaacs (1997) 41 NSWLR 374). It is not obligatory to sentence an offender on the basis of facts consistent with the verdict, that are most favourable to the offender, although the practical effect of requiring proof beyond reasonable doubt of any facts adverse to the offender may lead to that result (Cheung id). 26Both the Crown Prosecutor and Senior Counsel for the offender, Mr Young SC, submitted that the offender should be sentenced on the basis that he committed manslaughter by an unlawful and dangerous act. 27The Crown submitted that the evidence that the offender subjectively believed that it was necessary to stab Mr Puffett to defend himself was so sparse that it should be discounted. The Crown pointed to the following matters, none of which were in dispute, namely: the offender's statement that he was annoyed by Mr Puffett as his reason for joining the confrontation; the obviously intoxicated state of Mr Puffett meant that the offender could not have believed he represented a threat; it was the offender who chose to attend the confrontation armed with a knife; and the actions of the offender in chasing after Mr Puffett and yelling at him after he stabbed him. These submissions should be accepted. I am satisfied beyond reasonable doubt that the offender did not believe it was necessary to stab Mr Puffett to defend himself. 28It follows that I will proceed to sentence the offender on the basis that it was not established that in stabbing Mr Puffett he intended to kill or inflict grievous bodily harm, and that he committed manslaughter by an unlawful and dangerous act. 29One matter that arises in sentencing the offender is what role his intoxication, if any, played in his commission of the offence. As noted, the jury were instructed that, in determining whether he had the requisite intent, they were required to consider whether he might have been so affected by alcohol that no such state of mind was in fact formed by him (Crimes Act, s 428C). However, the jury's verdict does not necessarily mean that it so found. 30It is also consistent with the jury's verdict for me to conclude that the offender's level of intoxication did not impair his ability to appreciate the consequences of his actions. I am satisfied beyond reasonable doubt that it did not. I have listened to the '000' call and viewed the first ERISP. Further, as noted, the police officers who encountered the offender on the evening of 20 June 2012 were all firm in their evidence that the offender did not appear to be affected or at least significantly affected by alcohol. I accept the Crown's submission that his alcohol consumption may have loosened his inhibitions and perhaps made him more aggressive, but it did not impair his ability to control his actions, make decisions or appreciate the consequences of his actions. 31As noted, in the case of manslaughter by an unlawful and dangerous act, an act is dangerous if a reasonable person in the position of an accused would have realised that by that act the deceased was being exposed to an appreciable risk of serious injury. In this case I am not only satisfied beyond reasonable doubt that the offender's act had that quality, I am satisfied beyond reasonable doubt that the offender knew it had that quality, even if he did not intend to kill or inflict grievous bodily harm. 32The end result is that the offender is to be sentenced for deliberately inflicting a single stab wound in circumstances where he did not intend to inflict death or grievous bodily harm, but did realise that Mr Puffett was being exposed to an appreciable risk of serious injury. He did so in circumstances where he called out to Mr Puffett because he was annoyed at the noise he was making. Mr Puffett was loud, aggressive and issued a challenge. However, the offender dramatically escalated the exchange by responding to that challenge and seizing a knife or knives. By the time he confronted Mr Puffett the offender must have known he was drunk and knew that, while he was aggressive, he was no real threat. The offender knew that if he wanted to he could easily walk away, but instead he stabbed Mr Puffett then chased and abused him.

[4]

Victim impact 33At the time of his death Mark Puffett was thirty-four years of age. In her evidence Ms Calleja stated that she and the deceased had been in a relationship for twelve and half years. As stated, he was the father of her two youngest children. One of those children was aged ten and the other six when their father died. Ms Calleja also said that Mr Puffett had "been in [the] lives" of her two other children "since they were five and six years old". 34Victim impact statements were provided to the Court by Mark Puffett's brother, Stephen Puffett, his mother Marilyn Puffett, and his sister Melanie Hall. Stephen Puffett read his statement out to the Court as well as those provided by his mother and sister. It was clear that he was still feeling the distress of his brother's death. 35Stephen Puffett spoke of his shock in losing a sibling in such circumstances, without warning or any chance to say goodbye. He said that he constantly "see[s] [his] brother's face, feels his presence, hear[s] songs that [they] associate with him and [is aware] of little reminders of what [his] brother was like and liked doing". He described the pain he feels about the fact that he no longer has the opportunity to spend another family occasion such as Christmas or Easter with his brother, and the sense of loss for his children in no longer having their uncle. 36In her victim impact statement, Marilyn Puffett describes how her son's death has "left the biggest hole in [her] and [her] husband's heart", especially as he has not only been taken from them, but also taken from his siblings and his own children. She describes how her husband feels "lost", especially as her son had been an indispensable help for him in dealing with recent health issues. As with Stephen Puffett, she had difficulty in comprehending how he can have died in such circumstances and still spends "every day thinking he might come through the door", before remembering that he is gone. 37Likewise, Mark Puffett's sister, Melanie, has had difficulty coming to terms with the loss of her younger brother. She describes how everyday sights and sounds, such as observations and songs, bring back memories of him and remind her that he is no longer with her and that she did not have the chance to say goodbye. She describes her profound sadness from knowing that Mr Puffett will not have the opportunity to spend time with his sixteen nieces and nephews. She also describes the effect on her own daughters as they try to comprehend how a relative could lose their life in such circumstances. 38One of the many difficult aspects for a victim's family in murder and manslaughter trials is that sometimes they must suffer in silence as they hear evidence in a public forum about their loved one which portrays them in an unflattering light. This was such a trial. The victim impact statements play an important role in balancing the picture presented by the evidence adduced at a trial. They help to ensure that Mr Puffett is not defined by the evidence that, of necessity, had to be elicited about the events leading up to his death. The victim impact statements portray him as a person who formed part of a large, caring and supportive family who will miss him deeply. 39The significance of victim impact statements was discussed in MAH v R [2006] NSWCCA 226 at [61] to [63] per Grove J, Hidden and Kirby JJ agreeing. I am not to treat them as evidence upon which I can act or material which operates in aggravation of the offence or is otherwise adverse to the offender. Nevertheless the Court acknowledges the deep loss to Mark Puffett's family caused by his death at the hands of the offender.

[5]

Offender's personal history 40The offender was born in September 1976. As at the date of the offence he was thirty-six years of age. He is now thirty-eight. Tendered on his behalf was a statement from his sister, Ms Viengmaly Phanekham (also known as Jeni), as well as a report from a psychiatrist, Dr Olav Nielssen. The report from Dr Nielssen recounts aspects of the offender's personal history, as well as relaying statements made to him by the offender. In some cases sentencing courts are justifiably sceptical of personal histories and observations from an offender which are elicited via psychiatrist reports. However, in this case the history as given to Dr Nielssen is largely consistent with the evidence led at trial, is otherwise supported by the offender's sister, or generally uncontroversial. 41The offender came to Australia with his family from Laos at the age of four. He was the second youngest of seven children. He grew up in the Campbelltown area. He attended local primary schools and then Ambarvale high school. He left school at the end of Year 10. Dr Nielssen recounts him stating that his academic performance "wasn't really good". 42Jeni Phanekham described an incident when the offender was in primary school. He was struck by a rock in the head that caused a severe injury that left him with stitches and a huge scar. She recounted her belief that the throwing of the rock was racially motivated. She observed that, prior to the incident, the offender was a bright and intelligent child. She said that he was also quiet with a caring nature. However, she said that after the incident his behaviour changed. He became fearful of further assaults and had trouble sleeping. She says he deteriorated when he commenced consuming alcohol and taking drugs. His behaviour became erratic, in that at times he was unpredictably happy and at other times he was severely depressed and suicidal. 43Dr Nielssen recounts the offender stating that after he left school he could not hold long term employment, although he attempted various menial jobs. Dr Nielssen said that approximately five or six years ago the offender was granted a disability support pension on the grounds of depression. Dr Nielssen states that he has never had a long term relationship and that his main hobbies were watching Japanese cartoons and playing computer games. 44The picture painted by this evidence is entirely consistent with the evidence that was adduced at the trial. It suggested that he was a person living an aimless existence. He was aged in his mid-thirties and spent his time drinking by himself at home and playing computer games. However the evidence led at the trial from Dr Nielssen and the offender's sister revealed that he also played a significant role in looking after his aging mother. His father passed away a number of years ago. His mother lived with the offender at some point, although it is not clear whether she was living with him on the night of the offence. Apparently her health is deteriorating and she has had difficulty visiting him in gaol.

[6]

Prior offences 45The Crown tendered the offender's criminal record. In 1995 and 1997 he was convicted of common assault. On the first occasion he received a fine and on the second occasion he received a recognisance under former s 558 of the Crimes Act 1900 (NSW). In 1997 he was also convicted of possession of a prohibited drug for which he received a recognisance under former s 558. He has convictions for various driving offences involving alcohol and was disqualified from driving in 1999 and 2005. The penalties he received for these offences suggest that, considered in isolation, each offence was relatively minor, but the combination of them has some significance. 46However, there is one matter on his criminal record that is of particular significance. On 15 October 2006 the offender was convicted of an offence of being armed with the intention to commit an indictable offence contrary to s 114(1)(a) of the Crimes Act. He had pleaded guilty. He was sentenced to a term of imprisonment of seven months which was wholly suspended pursuant to s 12(1) of the Sentencing Act. 47The facts of that offence were that during an afternoon in October 2006 the offender believed that rocks were being thrown into his backyard by the children of the occupant of the house next to his neighbour's house. He went and spoke to the children's mother about the incident and returned to his house. About an hour and a half later he believed that rocks were still being thrown. He went inside his house and "obtained a black handled, steel bladed kitchen knife and placed it down the rear of his shorts with the top still visible above his shirt", and also "took a white steel pole and a long thin tree branch which he placed inside the hollow pole". He jumped the fence at the rear of his yard, walked through his next door neighbour's garden and jumped over another fence into the rear of the children's house in an attempt to catch them in the act of throwing rocks. 48The offender was confronted by their mother. He complained to her about the children throwing rocks. The mother observed the knife protruding from the top of his shorts and asked him to leave. The offender refused to leave and told the mother and another person present to chastise the children. At this point, the offender was holding onto the white steel pole as he pulled out the tree branch from inside it. After a further conversation, he is said to have "produced the knife from the rear of his pants and placed it in his palm with the pole and the branch". This occurred within the immediate presence of the mother, her children and another person. 49The offender returned to his house. He was later arrested. When interviewed he made full admissions. He told the police that he only wanted to scare the children, and he took the weapons so it would "make the children take him more seriously". It was common ground that the offender also told the police that he had been consuming alcohol. 50There are obvious similarities between this offence and the current one. On both occasions the offender was quick to resort to using a knife in response to some annoyance. On the first occasion he came close to being imprisoned, but on this occasion imprisonment is inevitable. Subject to considering the next matter, the circumstances of the earlier offence suggest that specific deterrence is a significant factor in this case.

[7]

Dr Nielssen's diagnosis and prospects of rehabilitation 51Dr Nielssen diagnosed the offender as suffering from chronic depression, a substance use disorder which was said to be in remission, and traumatic brain injury. The diagnosis of chronic depression was made on the basis of a history of his suffering long term symptoms of depression commencing in his late teenage years, including chronic low mood, lack of energy and anxiety. He considered that the factors contributing to his present depression included the effects of the head injury noted above, his frustration with disability, the effects of chronic substance abuse and, of course, his current circumstances. 52Dr Nielssen's diagnosis of substance use disorder was made on the basis of the account of several years of opioid dependence and abuse, a period of abuse of methylamphetamine, as well as abuse of sedative medication and the offender's account of his alcohol intake. Dr Nielssen described this disorder as being in remission on the basis of his detention in the "relatively drug-free environment" of gaol. 53Dr Nielssen's diagnosis of a traumatic brain injury was made on the basis of the offender's account of suffering a head injury resulting in a fractured skull. Dr Nielssen considered this to be a limitation on the reliability of his diagnosis. He did not rely on any documents relating to his past or recent treatment, although he noted that the offender was able to provide a reasonably detailed history. As noted, the suggestion that he suffered a traumatic brain injury is supported by the evidence of his sister. 54I accept the first two diagnoses of Dr Nielssen. As I have stated, the evidence at trial about the offender's lifestyle was consistent with someone who is effectively a recluse and who suffered a long term chronic depression. Similarly, the evidence as to his abuse of alcohol on the day of the offence was consistent with someone who has been abusing drugs and alcohol for a long period. 55I also accept Dr Nielssen's diagnosis of traumatic brain injury, although its effects were not described in any detail. In particular, there was no evidence that the offender's cognitive functioning was impaired and, in particular, that he was impeded in his ability to appreciate the potential consequences of his actions. 56Generally I am not satisfied that there was any causal connection between any of these conditions and the commission of the offence. It follows from that and the other findings I have made that considerations of both general and specific deterrence are of real significance in assessing the appropriate sentence for the offender. 57Dr Nielssen also stated as follows: "The main factors contributing to Mr Phanekham's behaviour appear to have been his intoxication with alcohol and his coincidental confrontation with another intoxicated person. He has reached his late thirties without having been in prison, and hence would have a relatively low risk of further offences of a similar nature, although I note the history of a previous incident involving a knife some years ago. His risk of reoffending is further reduced by sustained abstinence from alcohol and other illegal drugs." 58I have already made findings concerning the significance of the offender's intoxication to the commission of this offence. I agree with Dr Nielssen that one significant matter affecting his risk of reoffending will be whether he can sustain his abstinence from alcohol and illegal drugs. However, notwithstanding that he will now have an enforced sustained period of abstinence in gaol and presumably supervision upon his release, in the medium to longer term there is still an appreciable risk that he would return to a lifestyle that involved the abuse of alcohol and illegal drugs. 59Overall I consider the prospects that the offender will ever commit an offence as serious as this one in the future to be relatively low. Despite his limitations, the evidence suggested that the offender is a person with a reasonable level of intelligence who is capable of making the basic choices to enable him to avoid committing a serious offence. I am less optimistic, however, that in the medium to longer term he would not reoffend at some level. The risk of his return to using drugs and alcohol carries with it a concomitant risk that he may revert to some level of violence in response to a perceived slight. 60Overall I consider that the offender has a moderate risk of re-offending, although there is a relatively low risk of his committing an offence as serious as this one.

[8]

Aggravating and mitigating factors 61Subsection 21A(2) of the Sentencing Act lists a series of aggravating factors the Court is to take into account in determining the appropriate sentence. These factors cannot be considered as aggravating the offence if they are elements of the offence. Subsection 21A(3) lists a series of mitigating factors. 62Two aggravating factors are potentially relevant to this case. The first is that the offence involved the use of a weapon, namely a knife (s 21A(2)(c)). 63The second is that provided for in s 21A(2)(d), namely that the offender has "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)". The phrase "serious personal violence offence" is defined to mean any "personal violence offence" within the meaning of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 4(1) which is punishable by imprisonment for life or for a term of five years or more (Sentencing Act s 21A(6)). The offence of manslaughter for which the offender is being sentenced is clearly a "serious personal violence offence". However, the offender does not have a record of previous convictions for "serious personal violence offences". 64Although his assault convictions were all "personal violence offences", those offences were not punishable by a term of imprisonment of five years or more (Crimes Act, s 61). His conviction under s 114 of the Crimes Act was not defined to be a conviction for a "personal violence offence". Nevertheless, I consider his record of previous convictions, and in particular his conviction for that offence, is an aggravating factor in relation to the sentence to be imposed. In 2006 the offender waved a knife around in a context that would have been very frightening for the mother and her children. He was treated leniently and avoided gaol however he did not learn his lesson with knives. 65Mr Young SC also pointed to a number of mitigating factors. He submitted that the offence was not part of a planned or organised criminal activity (s 21A(3)(b)). I accept that this was so. The offence was a spontaneous overreaction by the offender to the victim's conduct. 66Mr Young SC also referred to s 21A(3)(c) which refers to the offender being provoked by the victim. Mr Young SC accepted that, on any view, the conduct his client was found to have engaged in was a drastic overreaction to any conduct of Mr Puffett, but submitted that does not prevent this mitigating factor being established. Clearly s 21A(3)(c) can extend to a wider set of circumstances than that envisaged by the defence of provocation in s 23 of the Crimes Act 1900. Thus, in a strict sense, I accept Mr Young SC's submission that there was a small element of provocation. However, it must be remembered that the offender was not directly affected by any aspect of Mr Puffett's conduct on the night, beyond finding it too loud. The offender did not intervene because he was concerned for the welfare of others, the general wellbeing of the street, or because he was somehow personally affronted by Mr Puffett's behaviour towards his own family. Instead he intervened because the victim was too loud and was disturbing his concentration on a computer game. While that can be described as a provocation, it is not a mitigating factor that I would attribute any real weight to in the sentencing process 67Subsection 21A(3)(g) provides that it is a mitigating factor if the offender is unlikely to re-offend. Subsection 21A(3)(h) provides that it is a mitigating factor if the offender has "good prospects of rehabilitation, whether by reason of the offender's age or otherwise". I have already made my findings about the offender's likelihood of re-offending and his prospects of rehabilitation. In view of those findings, I am not satisfied that these mitigating factors have been established. 68Subsection 21A(3)(i) provides that it is a mitigating factor if it can be shown that: "(i) ... remorse [has been] shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)" 69The offender did not give evidence at the trial nor did he give evidence before me. Mr Young SC submitted, correctly, that it is not necessary that the evidence of remorse be given by the offender directly to the Court on oath (see Butters v R [2010] NSWCCA 1 per Fullerton J at [17], with whom McClellan CJ at CL and McCallum J agreed). 70However, in this case there is very little evidence of remorse sufficient to meet s 21A(3)(i). In the offender's first ERISP he enquired about the position of the victim, but that is all. The topic of remorse is not addressed in Dr Nielssen's report. The offender's sister's affidavit records that on every occasion that she has visited him in gaol the offender was "genuinely remorseful for what occurred and was depressed and wished that it didn't happen and wanted to resume his quiet life and look after his mother". This does not satisfy me that he has accepted responsibility for his actions, or acknowledged the injury and damage caused by them. I am satisfied that the offender regrets his actions and their consequences for himself (and his mother), but that is not the same as being remorseful.

[13]

Conclusion and sentence 82While they acknowledged the limitations inherent in such an exercise, both Counsel referred me to numerous decisions imposing sentences for manslaughter including manslaughters by an unlawful and dangerous act. I have considered those decisions but will not traverse them in this judgment. They bear out the observations I have already made as to the wide array of circumstances comprehended by the offence of manslaughter. 83Debates about the appropriate sentences for murder and manslaughter, and the difference between the two, generate considerable heat but very little light. No doubt the family and friends of many victims attempt to measure the penalty imposed by reference to the loss they have suffered and often come up short. However, in applying both the Crimes Act and the Sentencing Act, the Court must undertake an exercise that not only requires consideration of the harm done to the victim but other factors as well (Sentencing Act, s 3A) . Thus the Court is obliged to respect the difference in moral culpability between the crime of murder and that of manslaughter. It must also balance considerations of deterrence, denunciation and rehabilitation. These factors coalesce to produce an outcome in the form of a specified period of incarceration, even though the relevant figure is distilled in a context where the interests being weighed are incapable of having mathematical values attributed to them. 84In this case, after allowing for the discount that I have referred to and some rounding, I have assessed the appropriate sanction as being imprisonment for a period of eight years constituted by a non-parole period of six years and a balance of term of two years. As the offender was taken into custody on 20 June 2012, it follows that his custodial sentence should commence from that date. 85Mr Phanekham, the offence of manslaughter is a "serious and violent offence" as defined in s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW). I am obliged by s 25C of that Act to advise you of the existence of that legislation and of its application to the offence you have committed. 86Viengsavanh Phanekham, for the manslaughter of Mark William Puffett you are convicted. You are sentenced to a term of imprisonment. Pursuant to s 44(1) and s 44(2) of the Sentencing Act I set a non-parole of six years commencing on 20 June 2012, and an additional term of two years commencing 20 June 2018 and ending on 19 June 2020. 87The sentence will be taken to have commenced on 20 June 2012. The offender will be eligible for release on parole on 20 June 2018 and the sentence will expire on 19 June 2020.

R v Phanekham

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