R v Russell

Supreme Court of NSW|2022-07-29|Before: Cavanagh J, Gleeson CJ, Ireland JJ

Judgment

On 19 December 2019, the offender, Eric George Russell, was charged with the murders of Damien Leigh Roach and Leah Mumbulla.
The Crown alleged that on 17 December 2019 the offender stabbed both Mr Roach and Ms Mumbulla whilst they were in or around his apartment block at 11 Huntley Place, Cartwright in New South Wales.
The offender entered pleas of not guilty to both counts of murder.
On 20 April 2022, his trial commenced before me and a jury of 12.
On 6 May 2022, the jury returned a verdict of not guilty of murder but guilty of manslaughter in respect of Mr Roach, and not guilty in respect of Ms Mumbulla.

Mr Roach

No victim impact statements were provided.
Having regard to the nature of these proceedings, I do not know much about Mr Roach or Ms Mumbulla. On post-mortem examination, they were both found to have had high levels of methylamphetamine in their systems which, according to the forensic pathologist, Dr Sairita Maistry, may have suggested that they were regular users of that drug. This also suggests that they may have been behaving erratically at the time of the events leading to their deaths.
They did not live in the unit block where the offender lived. They had walked from an address approximately 220 metres away, seemingly for the purpose of going to Unit No. 3 in the block. At the time, that unit was vacant in the sense that the former occupant, Mr Hargraves, had recently departed the unit. I am unable to say anything further about Mr Roach.

Circumstances of offending

The attendance of Mr Roach and Ms Mumbulla at the unit block where the offender lived forms the background to the events which led to their deaths.
It is necessary that I make findings of fact for the purposes of sentencing. [1]
I must make findings of fact in circumstances in which the jury must be taken to have accepted that the offender was acting in self-defence in respect of both Ms Mumbulla and Mr Roach but the force which he used to defend himself against Mr Roach was excessive, such that he has been found guilty of manslaughter.
Any findings I make for the purposes of sentencing must be consistent with the jury's verdict. [2] I remind myself that I must not make findings adverse to the offender unless I am satisfied of those findings beyond reasonable doubt. However, I may make findings that are favourable to the offender if I am satisfied of those matters on the balance of probabilities. [3]
Whilst the background to the offending is not in dispute, there is a substantial dispute between the parties as to the circumstances in which the offender stabbed Mr Roach, where that stabbing took place and whether I would be satisfied that the offender's conduct evinced an intention to kill Mr Roach.
The offender is a 38-year-old Aboriginal male. According to the history provided to Dr Ellis for the purposes of his report, the offender identifies as being a member of the Biripi people, his family having come from the Taree area. At the time of the offending, he was living in rental accommodation in a second-floor apartment in Cartwright, South-Western Sydney. He was in employment. He lived alone. He was not in a relationship at the time. He has a 7-year-old daughter from an earlier relationship. His daughter lives with her mother.
Around the middle of the day on 17 December 2019, the offender arrived home from work. He went to his unit and remained in his unit until the events which led to the deaths of Mr Roach and Ms Mumbulla. The offender consumed alcohol and cannabis.
At some time prior to 3.30pm, Ms Mumbulla and Mr Roach left their premises and walked to the offender's apartment block. As far as can be determined, they intended to visit Mr Hargraves, perhaps to collect money from him. There had been problems such as noise disturbances and issues with drugs arising from that unit involving Mr Hargraves, who by 19 December had vacated the unit. At the time of their attendance at the premises, both Ms Mumbulla and Mr Roach were significantly affected by methylamphetamine.
Shortly after they arrived, they were heard to be arguing and making noise in the ground floor apartment. This was at around 3.45pm.
It is the Crown case (at trial and on sentence) that as the offender relaxed in his upstairs unit, his "peace was disturbed". He grabbed a knife from his unit and went down the stairs adjacent to his unit to the ground level. There, he was confronted by Mr Roach, who was holding an axe or hatchet. On the Crown case, the offender then stabbed Mr Roach as Mr Roach came at the offender. That is, the offender stabbed Mr Roach downstairs rather than upstairs in his own apartment. On the Crown case, Mr Roach must have then dropped the axe. It was picked up by Ms Mumbulla who also came at the offender. The offender stabbed Ms Mumbulla. Mr Roach died at the scene. Ms Mumbulla died on the operating table in hospital.
On the Crown case, the events occurred because the offender's peace was disturbed and he went downstairs intending to deal with the situation. He was holding a knife. Although he was acting in self-defence, his conduct demonstrates that he intended to kill Mr Roach.
The Crown case as to where Mr Roach was stabbed is based primarily on the evidence of a witness, Mr Bangel, who also lived on the upper floor at the other end of the block. He said that he observed the offender going downstairs, proclaiming "I've had enough of you guys coming around here."
Further, the Crown points to a statement made by the offender at the scene that "I grabbed the first thing that was near me and ran downstairs."
The offender submits that I would not accept the Crown version of events, in the sense that I would accept that Mr Roach was stabbed whilst inside his apartment on the upper level.
The offender gave evidence at trial and was cross-examined extensively. The offender said that he was upstairs in his unit when he heard a knock on his screen door. Mr Roach was at the door and asked him if he had seen "Shannon" (Mr Hargraves).
The offender told Mr Roach that he had had a big argument with Shannon the week prior and the Police had come around, and he hadn't seen Shannon since that time. Mr Roach then told the offender that Shannon owed him money and that's why he was there. According to the offender, Mr Roach then left but came back about 5 minutes later, again coming to the door and suggesting that he was going to start collecting money from the offender. The offender said he tried to shoo Mr Roach away but he pulled out a hatchet from behind his back and hit the offender across the face with a part of the hatchet. He thought he was hit on the lip. He was dazed.
The offender says that he then went into his bathroom. He was bleeding. At the time, the offender thought he had been hurt more than he actually had been. He said there was a fair bit of blood. On that day, he had some cutlery in the tub in the shower, as he was cleaning it. His kitchen was being sprayed.
The offender grabbed a knife. He went back out into his loungeroom and saw Mr Roach with the hatchet and a rake. By this stage, Mr Roach was inside the offender's apartment. The offender said that he was scared and did not feel there was any way of escaping. He said he "unleashed" on Mr Roach. He punched Mr Roach.
He did not recall feeling any resistance in either hand as he punched him. He did not recall seeing any wounds and any blood from him at the time but, immediately after this, Mr Roach turned around and walked out of the unit. He was in a crouched position. According to the offender, he followed him down the stairs, seemingly to make sure that he was leaving.
It was at this point, that is, on the ground floor walkway, that the offender came in contact with Ms Mumbulla. Ms Mumbulla yelled at him "Oh, you fuckin' stabbed him, you dog, you stabbed him". According to the offender, only at this time did he realise that he had stabbed Mr Roach as he looked down at his knife. Ms Mumbulla then picked up the axe and came at him. As she was reaching for him with the axe, he said that he went "whack" and it was pure reflex. He stabbed her.
On the offender's version, he was subject to a violent attack in and around his apartment. Only after he had been hit the first time by Mr Roach and saw Mr Roach coming into his apartment, did he grab the knife from the tub in the shower and go back out and confront Mr Roach. On the offender's version, he "unleashed on him", although he did not realise that he had actually stabbed Mr Roach at the time. It was not until he followed Mr Roach downstairs and Mr Roach collapsed that the offender realised this.
As the Crown submits, the offender's version is inconsistent with the evidence of Mr Bangel, who said that he saw the offender coming downstairs muttering that he'd had enough. However, at best, Mr Bangel was positioned outside his unit on the other side of the apartment block. It is difficult to reconcile Mr Bangel's evidence with the verdicts.
Further, the forensic (blood stain) evidence is not such that mandates any conclusion on the disputed facts. It must be observed that two people were killed but the offender was only found guilty of the manslaughter of Mr Roach.
There is no dispute that Ms Mumbulla was stabbed downstairs in the area outside the units. The forensic evidence does not assist in determining the precise events which led to her death.
In my view, the offender's version as to what happened with respect to Ms Mumbulla would be consistent with his acquittal in respect of her death. That is, she came at him, and he stabbed her only when she was attacking him with the axe. That provides the explanation for his acquittal in respect of the death of Ms Mumbulla. He was acting in self-defence. Any other finding would be inconsistent with the jury's verdict.
On the basis that the jury likely accepted the offender's evidence in respect of Ms Mumbulla, it may be that the jury accepted the evidence of the offender in respect of the events leading to the death of Mr Roach. However, this is not necessarily so, as the jury was instructed that it may accept the whole or part of a witness's evidence, including the evidence of the offender.
It is perhaps difficult to reconcile the differing verdicts in respect of Ms Mumbulla and Mr Roach in circumstances in which, on the Crown case, they were both stabbed by the offender when he went downstairs because his peace was disturbed and when they both approached him in similar circumstances.
On the other hand, the finding of not guilty of murder, but guilty of manslaughter based on excessive force, would be consistent with the offender's version of events. The jury may have reasoned that, although the offender believed it was necessary to defend himself, he used excessive force in doing so, in the sense that he unleashed on Mr Roach, seemingly punching him four times with a knife in his hand. Alternatively, the jury may have reasoned that although the offender believed that it was necessary to defend himself, there were other options available to him and the force that he used in those circumstances was unreasonable.
I must not make findings against the offender unless I am satisfied of those facts beyond reasonable doubt. I am not so satisfied that Mr Roach was stabbed only after the offender went downstairs holding a knife, seemingly intending to confront him. I find that the offender was confronted by Mr Roach in his own apartment (on the second occasion that Mr Roach was there). After he had been initially struck by Mr Roach in his doorway, the offender armed himself with a knife which he obtained from his bathroom, whilst he was attending to the wound that Mr Roach had already inflicted upon him. The offender left his bathroom with the knife and observed Mr Roach holding a hatchet in one hand and a rake in the other. The offender, believing that he needed to defend himself, then hit Mr Roach with four quick blows, all whilst holding a knife in his hand.
After this occurred, the offender went to Mr Bangel's apartment and asked him to call the police. When the police arrived, the offender remained present at the apartment block. He cooperated with the police.
The offender inflicted the following wounds on Mr Roach: 1. A stab wound to the right anterior chest wall, which perforated the heart, lower left lung lobe and into the left diaphragm. The estimated depth was at least 180mm; and 2. A stab wound to the right arm, which perforated the intercostal muscle in between ribs 3 and 4 on the right and penetrated the upper lung lobe. The estimated depth was at least 15mm into the lungs.
The cause of Mr Roach's death was stab wounds to the chest and the consequences thereof.
The jury may have accepted that the infliction of such wounds and the use of four blows and "unleashing" on Mr Roach was excessive or it may have accepted that whilst the offender might have felt it was necessary to defend himself, he could have taken an alternative course of action, such as trying to get out of his apartment.

Medical evidence

I do not accept that the offender has established that his actions were caused by any psychological condition from which he may have been suffering.
In her report of 21 July 2022, Ms Vanessa Edwige, a registered psychologist, provides a brief description of the circumstances of the offending. It is plainly a summary and does not contain sufficient detail to be relevant to or cast a doubt on the findings I have made in respect of the circumstances of the offending.
According to Ms Edwige, the offender was suffering from complex developmental trauma, which was untreated at the time of the offending. This is said to have impacted upon his ability to regulate his emotions and behaviour, heightened his reaction to a perceived threat and impacted upon his ability to make appropriate and informed decisions and exercise good judgment. At the time of the first sentencing hearing, I raised some uncertainty as to the meaning of that diagnosis and, in particular, what was meant by "complex developmental trauma, untreated". No further evidence was adduced from Ms Edwige. Instead, the plaintiff obtained further expert evidence, being a report from Dr Andrew Ellis, forensic psychiatrist, dated 9 November 2022.
The report of Dr Ellis contains a more detailed history of the offending. There is some variation on the evidence adduced at trial, particularly as to what happened after Mr Roach was stabbed. However, the critical part of the version is consistent; the offender explained to Dr Ellis that Mr Roach had come to his door, the offender believed he was intoxicated and after some discussion, the offender tried to close the door but the offender swiped him with a hatchet.
Again, Dr Ellis obtained an abbreviated version of events, which involved Mr Roach leaving but coming back into the apartment and the offender obtaining a knife from the bucket in the bathroom. According to Dr Ellis, the offender told Mr Roach to "get the fuck out of my apartment" and then Mr Roach came towards the offender, who stabbed Mr Roach twice and punched him twice.
Whilst there is some variation in the version of events on which the offender relies, the description of the circumstances of the offending in this report merely provides background for the purpose of the medical expert's examination, which is to provide evidence regarding the psychological state of the offender and whether any psychiatric illness might have impacted upon the offending.
Dr Ellis diagnosed the offender as suffering from post-traumatic stress disorder ('PTSD'), alcohol use disorder and cannabis use disorder. He said that on the day of the index offence, the offender was exposed to a traumatic event. Since that time, the offender has experienced recurrent, intrusive and distressing memories of the traumatic event, recurrent dreams of the event and physiological reactions to internal or external cues about the event. He has made persistent efforts to avoid distressing memories, thoughts and feelings about the event. He has been suffering from a negative emotional state. Further, he suffers from alcohol use disorder, although that was in remission in a controlled environment at the time of Dr Ellis' examination, as was his cannabis use disorder.
Dr Ellis opined as follows: "It is possible that Mr Russell was suffering from PTSD prior to the index offence, although it is not clear. He certainly suffered from a number of candidate traumatic events prior to the offence including multiple assaults, injuries, hospitalisations, and the fear that his mother would die of a brain tumour. However it was unable to be ascertained that he was suffering from classical symptoms of PTSD, nor those of a complex PTSD, prior to the index offence. His state prior to the index offence would be better conceptualised as having a history of adversity which would predispose to problems with impulse control, emotional regulation and managing interpersonal stress …"
Dr Ellis went on to say that, whilst the diagnosis of classical PTSD was not certain at the time of the index offence, individuals who have PTSD or who have suffered adverse events during development may have a heightened sensitivity to potential threats and can at times be quick to anger and aggression. He also noted that most of the offender's prior criminal history has been in the context of intoxication.
Whilst the psychological/psychiatric evidence relied upon by the offender is relevant for a number of reasons, I am not satisfied that the offender was suffering from any recognised psychological condition which caused or contributed to the offending, such as PTSD or depression or any other mental health diagnosis.

Seriousness of the offending

A crime of manslaughter involves the felonious taking of human life, which is regarded by the law as a most serious crime. [4]
It has also been emphasised that circumstances giving rise to a conviction for manslaughter and degrees of culpability are so varied that no established sentencing tariff can be applied.
The seriousness of the offending is determined with reference to the facts of the killing and not the class of manslaughter. [5]
The assessment of the objective seriousness of the offending is part of the discretionary process of determining where the sentence for this offender might fit within the range of sentences that could be imposed. The assessment of objective seriousness is not a reflection of the impact that the death of Mr Roach might have had on others, nor is it intended to in any way minimise any feelings of grief or loss experienced by others.
Each case depends on its own facts and circumstances. Objective seriousness must be assessed without reference to matters personal to the offender or the particular class of offender and only with reference to the nature of the offending (subject to there being a causal connection between, for example, a mental health condition and the commission of the offence). [6]
As identified in R v Hoerler, [7] when sentencing for the offence of manslaughter, the Court must have regard to the full context in which the death occurred. That necessarily includes a consideration of the extent of violence and the risk of death or serious injury which accompany it.
As the offender is being sentenced on the basis that he believed that his conduct was necessary to defend himself, but that his conduct was not a reasonable response in the circumstances as he perceived them, it is necessary to make findings as to the circumstances perceived by the offender at the relevant time and then determine the degree to which his conduct departed from what would be considered a reasonable response to those perceived circumstances. [8] As was observed in R v Trevenna, [9] this type of offending is "committed under conditions of fear of varying degrees of extremity".
In my view, the following matters are particularly relevant to the assessment of objective seriousness: 1. The offender was initially struck by Mr Roach at the front door of his unit. 2. The offender was struck in the face with a weapon, being an axe or hatchet. This was a significant blow to the offender. 3. The offender only grabbed a knife after he had been initially struck by Mr Roach. 4. At the time the offender stabbed Mr Roach, Mr Roach was inside the offender's unit holding both an axe and a rake. 5. Mr Roach had already threatened the offender, saying he was going to get money from him. 6. The offender unleashed on Mr Roach when Mr Roach was inside his unit holding two implements which could have been used as weapons. 7. The offender punched Mr Roach, albeit he was holding the knife in his hand, which he must have known. During the hitting of Mr Roach, he stabbed him with the knife he was holding.
The Crown submits that the offender's use of a weapon is an aggravating factor (see s 21A(2)(c) Crimes (Sentencing Procedure) Act 1999 (NSW)). I accept that, although the offender was confronted with a person who had already struck him with an axe and was holding two weapons when the offender stabbed him.
This is not a case in which the offender armed himself with a weapon to confront an unknown person. The offender only took hold of a knife after being struck by Mr Roach with an axe. Further, Mr Roach entered his apartment armed with the axe and rake and the offender must have believed that it was necessary to defend himself.
I do not accept that, in striking Mr Roach in the way that he did, the offender intended to kill Mr Roach. The offender's evidence suggests a loss of control when confronted with a person in his own apartment armed with potentially two weapons and having already been struck. Whilst the jury must have considered that the force used by the offender was excessive, having regard to the matters to which I have referred, the level of force was not at the extreme level of disproportionality. It was excessive but not significantly so.
I accept that the offender intended to cause injury to Mr Roach, but the evidence does not satisfy me beyond reasonable doubt that he intended to kill Mr Roach. In all the circumstances I have outlined, the objective seriousness of the offence is below the middle of the range.

The offender's subjective circumstances

The offender is currently 38 years of age. He lived alone prior to the offending. Whilst he denied any family history of mental illness, there is a family history of substance abuse, with his uncle having died of a heroin overdose and other family members being cocaine users. When he was 8 years old, the offender's mother was diagnosed with a cyst in her brain. She had two seizures. His brother was diagnosed with leukaemia when he was 13.
The offender denied any history of abuse in the home, albeit that he refers to violence on a mission whilst he was there for a short period.
He attended Bonnyrigg Primary School and James Busby High School, although he did not do well academically. He was suspended from school on a number of occasions due to punch-ups. He suffered from bullying and taunting. He left school at the end of Year 10. He also left home at this time and moved in with a friend. He has lived in various addresses since that time, including on a mission. He has had multiple jobs including as a delivery driver, a boilermaker and in a position cutting glass. He has no formal qualifications. He was in employment at the time of the offending.
The offender's longest relationship has been with the mother of his daughter for a period of six years.
The offender has a criminal history extending back to 2006.
In 2007, he was convicted of a number of offences involving violence, including assault with intention to rob, destroy property and assault occasioning actual bodily harm in the company of others. He was sentenced to 6 months imprisonment for the offence of assault occasioning actual bodily harm, and 4 years imprisonment (with a non-parole period of 2 years) for the offence of assault with intent to rob.
In 2014, he was convicted of a number of domestic violence-related offences including common assault, stalk and intimidate. He was sentenced to 3 months imprisonment commencing on 18 September 2014.
Then in December 2014, he was convicted of offences being resist or hinder police and assault police officer. He was placed on a s 9 bond.
His only further offending prior to the events which occurred on 17 December 2019 was a contravention of an AVO, for which he was sentenced to a term of imprisonment of 8 weeks commencing on 21 June 2017.
I accept that the offender's criminal history is such as to disentitle him to leniency, although there are, of course, many other factors which I must consider in determining the sentence.
I accept the opinion of Dr Ellis that the offender has suffered from PTSD since the offending but, based on the report of Dr Ellis, I am unable to find that he was suffering from PTSD at the time of the offending. He has suffered from substance abuse and alcohol abuse problems. He had consumed both alcohol and drugs in the hours prior to stabbing Mr Roach.
The offender first tried ecstasy and speed at around age 16. He used to drink heavily in social settings. He has used alcohol and cannabis and has committed substance-related offences. He says the offending in 2014 was partly alcohol-related. He says he has not touched amphetamines since his sentence for the robbery offending. Then he turned his life around in October 2014, when his daughter was born. Since coming into custody in 2019 he has not consumed any drugs or alcohol.
Having regard to the evidence of the offender, the medical evidence and the history provided to the psychologist and psychiatrist (which was not the subject of any challenge), I accept that the offender suffered from some childhood disadvantage having regard to the disruption in his family life, racism and early exposure to drugs and violence. I accept that this may have affected his social and emotional wellbeing to the extent that it left him feeling isolated and disconnected. However, whilst he was exposed to some violence and trauma, he described his home life as happy. His parents separated but there is no evidence that he was abused by any family member. The violence that he was subjected to was incidental in the sense that it occurred at school and, at one stage, the offender was attacked by the father of a person he knew.
The offender was subject to some bullying and racism in relation to his Aboriginality, but having regard to all of the evidence, this is not a case where the level of dysfunction and exposure to trauma and violence was at the high level referred to in cases such as Bugmy. [10]
I have regard to these matters as impacting upon the offender's moral culpability to some extent, in the sense that these matters affected the offender's emotional regulation and made him quick to anger and quick to respond. He did suffer disadvantage in his childhood but it was not at what might be described as the highest level. He never sought treatment for any psychological problem prior to the offending conduct. He was in employment and leading a relatively stable life. He appears to have done so for many years prior to the offending conduct, subject of course to his earlier criminal offending.

Prospects of rehabilitation

The offender relies on what I will describe as references.
Katrina Smith is a pastoral carer. She has been a member of St Marks Anglican Church for 18 years. She has known the offender for 28 years. He is a friend of hers. She says that all of his friends would be extremely supportive and protective of him upon his release. His daughter misses him terribly. She says the offender has always been a hard worker and continues to do so in gaol. She would expect him to continue to work hard upon release.
Darleen Delaney is the offender's aunty. She has been involved in a management position in Youth Justice for many years. She continues to have ongoing contact with the offender. She considers that he has strong family morals and has expressed his extreme disappointment for being in his current position. He is normally a very quiet and reserved person who has strong work ethics and likes to be independent. He is a person who values respect. She believes that he will find employment upon release.
Noel Thomas is the father of a friend of the offender. The offender has been working on and off for Mr Thomas for 10 years. He has always been dependable, articulate and willing to learn. Mr Thomas would offer the offender a job upon his release to the community.
Brooke Bevan is a commercial manager at a national company. She has known the offender for 7½ years. She speaks to him once or twice a month. He has become a close friend. She believes that he has a kind nature and a caring demeanour. She says that the offender has big plans for his future and regularly talks to her and her husband about his short-term and long-term goals. He is a proud and loving father. He is adored by his family.
Nicole Thomas is another member of the Thomas family who knows the offender well. She acknowledged that the offender has made some mistakes in life but he has always owned up to them and shown remorse. He learns from his mistakes. She believes that he has grown as a person whilst in custody.
Karen Delaney is the offender's mother. She says that he has always been a quiet, reserved and gentle person who went through school without issues and found work upon leaving school. He has always looked after his younger siblings. He is generally respectful and a wholehearted person. He will have ongoing support from his family and friends when he returns to the community.
The offender says that he has been giving thought to his future plans (when released). He says that he will initially live with his sister in Warwick Farm and plans to work for Noel Thomas' strata maintenance company. His mother and other family members will help to set him up with a good GP and psychologist. He says he will be looking for a fresh start and he will reach out to community organisations.
The offender also details the difficulties he has experienced being imprisoned during Covid-19, having regard to the lockdowns and lack of visitors.
According to Dr Ellis, the offender has a number of historical risk factors associated with an increased risk of violence. However, he also has a number of motivational factors, including stable work and a desire to complete further study. He is also motivated to stay in contact with his daughter and to provide care for her in the future. Whilst he might fall into a group of people with a moderate risk of future violence, his risk of imminent violence is low, given his stable mental state and his protective factors. Dr Ellis considers that the offender is a vulnerable person in prison, owing to his PTSD, and he is often exposed to disputes and traumatic incidents that have the potential to negatively impact on his mental health.
I accept that the offender has good prospects of rehabilitation. He has strong family support in the community and an offer of employment. There is no evidence that he is consuming drugs in prison.

Remorse

The offender expresses remorse in his affidavit. The fact that he was remorseful is noted in the expert medical evidence. Those members of his family and friends who mentioned the issue in their statements referred to the offender as expressing remorse. He also expressed remorse whilst being interviewed by police in the cells.
I am cognisant of the fact that the offender did not give evidence on sentence and that, in a case of self-defence with excessive force, statements of remorse are somewhat qualified. However, on all the evidence adduced for the purposes of sentence, I accept that the offender has expressed remorse for the death of Mr Roach and for what occurred leading up to his death.

Deterrence

Having accepted that the offender's moral culpability is reduced, specific deterrence is not a significant factor in the exercise of the sentencing discretion. General deterrence is a relevant factor but I would not give that factor significant weight.

Special circumstances

The offender has been in custody throughout the pandemic. He has been subject to the measures taken to reduce the effect of the pandemic in prison throughout the whole period. His time in custody has been more onerous because of that.
The offender has been diagnosed with PTSD and Dr Ellis recommends a form of treatment. He may need an extended period on parole to deal with his mental health issues.
I am satisfied that special circumstances exist and that it is appropriate to vary the statutory ratio, although not by a significant amount.

Plea of guilty

The offender offered to plead guilty to manslaughter on the basis of excessive self-defence in the Local Court. Section 25E(3)(a) Crimes (Sentencing Procedure) Act 1999 (NSW) applies and the offender is entitled to a 25% discount.

Comparable cases

The Crown relies on the JIRS statistics and a number of comparable cases in respect of the offence of manslaughter.
The comparable cases and, indeed, the JIRS statistics demonstrate the wide range of sentences for this type of offending.
The Crown acknowledges the limitations on the use of comparable manslaughter cases, as each case is different and must be decided on its own particular facts. A selection of sentencing judgments does not determine a sentencing range. [11]
The JIRS statistics suggest that the majority of sentences for the offence of manslaughter fall within the range of 5 to 12 years. Although again, those statistics do not reveal the extent to which each sentence was, for example, reduced by the account of a plea of guilty or other factors.
I have reviewed the cases referred to by the parties but I do not consider it necessary to refer to any comparable cases for the purpose of this sentence.

Sentence

The purposes of criminal punishment include the protection of society, deterrence of the offender and others who might be tempted to offend, retribution and reform.
As observed in Veen v The Queen (No 2), [12] those purposes overlap, and none can be considered in isolation when determining what an appropriate sentence may be in the process of intuitive synthesis, which is the sentencing process.
I have regard to the objective seriousness of the offending as well as the offender's subjective circumstances. I consider that a slightly longer period on parole is appropriate, having regard to my finding of special circumstances. I apply a 25% discount on the sentence which I otherwise would have imposed, having regard to the offender's offer of an early plea in respect of manslaughter.
The sentence I would have imposed but for the discount is 8 years and 8 months imprisonment. With a 25% discount, the sentence is 6 years and 6 months imprisonment. I fix a non-parole period of 4 years and 5 months.
Eric George Russell, for the offence of manslaughter, I impose a sentence of imprisonment consisting of a non-parole period of 4 years and 5 months with a balance of term of 2 years and 1 month. The offender has been in custody since 17 December 2019. The offender will become eligible for parole when the non-parole period expires on 16 May 2024. The sentence will date from 17 December 2019. The total sentence expires on 16 June 2026.
As the offender is convicted of a "serious offence", it is a requirement that he be warned of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and of its application to the offence. [13] I ask the offender's solicitor to undertake that task on the Court's behalf.

Endnotes

GAS v The Queen (2004) 217 CLR 198 at [30]; The Queen v Olbrich (1999) 199 CLR 270 at [1].
Savvas v The Queen (1995) 183 CLR 1; [1995] HCA 29 per Deane, Dawson, Toohey, Gaudron and McHugh JJ)
The Queen v Olbrich 199 CLR 270; [1999] HCA 54 199 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ.
R v Blacklidge (NSWCCA, Gleeson CJ, Grove and Ireland JJ, 12 December 1995) per Gleeson CJ.
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [49] per Howie J.
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; GG v R [2018] NSWCCA 280 at [60] per Schmidt J.
(2004) 147 A Crim R 250; [2004] NSWCCA 184 at [44] per Spigelman CJ, with Hume and Adams JJ agreeing.
Smith v R [2015] NSWCCA 193 at [36], [45] per Simpson JA, with Leeming JA and Hamill J agreeing.
(2004) 149 A Crim R 505; [2004] NSWCCA 43 at [46] per Santow JA.
Bugmy v The Queen (2013) 249 CLR 571, 594-595 per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ.
Matheson v R [2015] NSWCCA 108 at [52] per Hoeben CJ at CL.
(1988) 164 CLR 465; [1988] HCA 14.
Crimes (High Risk Offenders) Act 2006 (NSW), s 25C. 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: 15 February 2023

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Judgment (14 paragraphs)

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