R v SCOTT

Judgment 1HIS HONOUR : Cameron Scott (the offender) was indicted on a charge that he murdered Melloney Menhennitt (the deceased) at Manly on 12 March 2004. The offender was acquitted by a jury of that charge but was convicted of the alternative charge of manslaughter, the maximum penalty for which is imprisonment for 25 years. The sole basis upon which the alternative charge was left to the jury was that the deceased died as the result of an unlawful and dangerous act on the part of the offender. There is no standard non-parole period which is applicable to the offence of manslaughter. 2It is my obligation to sentence the offender, in accordance with well-established principles, for the offence of which he has been convicted. That said, at least for present purposes, the factual background to the offence is largely uncontroversial, despite the fact that more than 70 witnesses gave evidence and almost 60 exhibits were tendered during the course of the trial which ran for the best part of 3 months. 3A co-accused, Michael Widmer was acquitted of the murder and the manslaughter of the deceased. The case against him was decidedly threadbare. It effectively consisted of a response made by Mr Widmer to a question by an acquaintance concerning the deceased's whereabouts. The person who asked it, Stuart Robb, described it as having been asked in a "light hearted fashion". Mr Widmer's response, which was both ambiguous and equivocal, was described by Mr Robb as having been made in a "joking" manner. It was relied upon by the Crown as having constituted an admission. However, apart from any other consideration, it was at odds with the rest of the evidence adduced at trial. In all the circumstances it was hardly surprising that the jury did not act upon it. Furthermore, the jury was unable to agree in respect of a further alternative charge that asserted that Mr Widmer was an accessory after the fact to the manslaughter of Ms Menhennitt. The Crown subsequently informed the court that that charge had been 'no billed'. 4The deceased was 23 years of age when she met her fate, although her life had been deeply troubled since she had been about 13. Sadly, from that point in her life both her mental and physical health deteriorated markedly. She also suffered from regular bouts of depression. In her later teenage years she became addicted to heroin and thereafter embarked upon an all too familiar path of self-destruction. That led to quite understandable tensions between her and other members of her family, a matter which was undoubtedly extremely painful for all concerned. In due course she moved out of the family home and took up residence with a much older man named Robert Sender. However, her life continued to spiral out of control despite the fact that she was attending the methadone clinic attached to Royal North Shore Hospital. During this period she sustained herself by selling marijuana to fellow addicts from the clinic. The evidence from both her parents and from Mr Sender was that she was prone to mood swings. She also regularly engaged in tantrums and screaming fits and resorted to violence when affected by drugs. She also consulted her GP, Dr Timothy Barnes, on a regular basis for a variety of physical ailments. Included amongst her problems were debilitating ulcers which made it difficult for her to eat. That in turn caused her weight to drop alarmingly. The evidence clearly establishes that by the time of her death she was very thin and frail and in a very poor physical condition. The extent of her decline evokes very considerable sympathy. 5In early March 2004 the deceased was introduced to the offender by her friend, Vana Militades. Thereafter she stayed in his room at 197 Sydney Road Fairlight for several days. It was a large, rambling house in which a number of other drug addicts either resided or visited. 6The critical events which preceded Ms Menhennitt's death occurred during the early hours of the morning of 12 March 2004 in premises at 2/86 Darley Road, Manly, which were leased by Mr Widmer's father, Frank. 7It is convenient to now refer to the evidence of Angela Muldoon who was the critical witness in the Crown case. She gave evidence of having spent several days preceding the night in question with Michael Widmer at the Darley Road premises recovering from a drug binge. She said that on the afternoon of 11 March she accompanied Mr Widmer to the Steyne Hotel in order to borrow money from his father with which to buy "ice". From there, she said, they proceeded on foot to 197 Sydney Road where they purchased the drugs from Suzie Lenton. According to Ms Muldoon, having met up there with the offender and the deceased, the four of them then returned to the unit in Darley Road in the deceased's car. 8According to Ms Muldoon, the four of them remained at the Darley Road premises until the following morning apart from an occasion on which they went to an address in Balgowlah in order to obtain a further quantity of "ice". Ms Muldoon gave evidence that the four of them injected themselves with various quantities of ice and that they also smoked a number of cones of marijuana. She gave evidence about various incidents which had occurred in the unit during the night. These included an occasion on which she said that she had assaulted the deceased, and an occasion on which the deceased remonstrated with the offender as to the way in which he was distributing the drugs between the various persons who were going to use them. She also gave evidence about an incident which had occurred between the offender and the deceased in the bathroom. 9She then related how, at about 4.30 am, the offender had pursued the deceased when she had run out of the premises. Ms Muldoon said that when she heard the deceased scream she had dispatched Mr Widmer to ascertain what was happening. As I understand the effect of her evidence in the witness box, the deceased had screamed in all on three occasions. By way of contrast, she told police in her first interview that she had heard only the one scream. 10Shortly thereafter, Ms Muldoon said that she had rung a taxi and had gone to Kings Cross. Before doing so, she said that she had taken a substantial sum of money and a further quantity of drugs from the deceased's purse. She said that she had not seen the deceased again. On the other hand, Ms Muldoon gave inconsistent accounts as to whether she had seen the offender again that morning. In her evidence she said that she had not, whereas in at least one interview with police she indicated that she had seen him returning to the unit with Mr Widmer. 11One challenge for her, and indeed for other witnesses, was that the events about which she was giving evidence occurred more than 7 years ago. But apart from that consideration, there were a number of aspects of Ms Muldoon's evidence which were unsatisfactory and which served to render her evidence unreliable. For example, the evidence revealed that she had been arrested and charged with various offences arising from her involvement in the events which culminated in the death of Ms Menhennitt. Ms Muldoon was originally charged with being an accessory after the fact to her murder but as a result of her undertaking to give evidence in these proceedings, that charge was dropped. In relation to the two remaining matters with which she had been charged, namely the stealing from, and the assault upon the deceased, she was placed upon a bond. Her co-operation with the authorities no doubt loomed large in the sentencing process, especially as her criminal history includes various entries for matters of dishonesty for which she has served a number of terms of imprisonment. 12Furthermore, Ms Muldoon had been, on her own admission, a drug addict for a period of 20 years. She candidly admitted that whilst she is on drugs she has no concept of time or the value of money. It is abundantly clear from other objective evidence, including call charge records, that Ms Muldoon had little or no idea of the time or the sequence in which the events, about which she gave evidence, had unfolded. Moreover, some of her evidence, including her explanation as to why she had felt it necessary to assault the deceased by striking her on the face, was completely fanciful. 13There was also evidence from the taxi-driver who drove Ms Muldoon to Kings Cross that morning that she was "incoherent" from drugs during the course of that trip. Her condition clearly affected both her perception of the events of the evening and her capacity to accurately recall what she had seen and heard. It was also very apparent that Ms Muldoon was under the influence of drugs at times whilst she was giving evidence. Indeed her evidence was interrupted, at least twice, when it became apparent that she was in no fit condition to continue with it. 14As I have implied, Ms Muldoon was spoken to by police on a number of occasions. Not only were there inconsistencies between the various versions which she provided to them but she also told police that her memory was "a little bit scrambled by drugs". In her evidence she said that being on drugs meant that "I wouldn't have known what was true and what wasn't". 15That said, some of the things about which Ms Muldoon gave evidence, and particularly in relation to the events that unfolded in the period just prior to the deceased running out of the Darley Road premises, remained uncontradicted. 16The other witness who gave evidence about the events of that evening was Frank Widmer. His evidence was much narrower in its scope. He said that he had been awoken at about 2 am by a knock on the door. He said that he opened it in order to let in his son Michael, the offender, the deceased and Ms Muldoon. He said that he told them on a number of occasions during the evening to be quiet. He gave evidence that the deceased was continually making noise by screaming loudly and that all of them, including the offender, had tried to quieten her down. Ms Muldoon gave evidence to similar effect. He gave evidence that the deceased and the offender had left the unit at about 4.30 am. He said that when he left for work at about 6.15 am his son, Michael, was still there and that some-one else was with him. However, he said that he was uncertain whether it was Ms Muldoon or the offender who was with Michael. Although his account of events is to be preferred where it differs from that given by Ms Muldoon, the reliability of his evidence was to some extent affected by the fact that, consistently with his lifestyle, he had consumed a not insignificant quantity of alcohol during the evening about which he gave evidence. 17The offender did not give, or call evidence at the trial. He had however been interviewed on three separate occasions by the police being 8 April 2004, 28 October 2004 and 20 January 2010 respectively. It was on that latter date that he was arrested and charged with the deceased's murder. It is common ground that his sentence should be ordered to commence on that date. 18A critical part of the Crown case emerged from the contents of listening device material which captured conversations between the offender and a police undercover operative who was codenamed 'Ray'. Those conversations took place on 11 and 21 May 2004 respectively at Manly Oval. During the course of them, the offender told 'Ray' that whilst they were in the bathroom the deceased had stabbed him in the chest with her comb which had snapped. He told 'Ray' that he had thrown her against the wall and asked her what her problem was. He said that shortly thereafter she had run out of the unit and down the road to the corner screaming loudly. (In speaking of 'the corner', it may be assumed that the offender was referring to the intersection of Darley and Addison Roads). He said that he had followed her out of the unit and that she had called out "Somebody help me". He told 'Ray' that he had grabbed her shoulders and told her to "shut the fuck up". He said that they had had an altercation following which he had "fucking plonked her fucking straight on her arse". In the second of those conversations the offender told 'Ray' that he had "given her the fucking shoulder" and that he had left her "sprawled [on the ground and] just fucking bawling". He said that he had then returned to the unit. It may be observed that at no stage did the offender admit to 'Ray' that he had killed the deceased. That was despite the fact that 'Ray' was acting as an agent provocateur and was clearly seeking to extract admissions from the offender in circumstances in which the offender was oblivious to the fact that their conversations were being recorded. 19It is to be observed that what the offender told 'Ray' was at odds with what he told police. In the first such interview he acknowledged that he had followed the deceased for some distance, whereas in the latter two interviews he said that he had left the premises to look for her but had been unable to see her. I accept the Crown's submission that he had been endeavouring, in the latter two interviews, to distance himself from the altercation that he had had with the deceased. The inconsistent versions which the offender provided could scarely have advanced his credibility in the eyes of the jury. 20The offender also made admissions to other people that he had had a physical encounter with the deceased on the evening in question. He told Gary Foord, with whom he shared a room at 197 Sydney Road, that she had become hysterical and that he had tried to "calm her down and shake some sense into her". He told another resident of the house, Katherine Newson, that the deceased "had flipped out and that he had hit her" because she was out of control. The offender told Vana Militades that he had slapped her to "calm her down" and that she had become "erratic". Furthermore, Ms Muldoon gave evidence of being present at a conversation during the course of which her friend, Michael Lees, asked the offender how he had killed the deceased. She said that whilst at no stage during the conversation had the offender admitted that he had killed her, he did acknowledge that he had shaken the deceased. 21The Crown also relied upon a further conversation about which Ms Muldoon gave evidence that was not the subject of challenge. She said that the offender told her, a few days after the deceased's disappearance, that the deceased was in East Wing, a psychiatric ward that is attached to Manly Hospital. Records were produced which demonstrated that she was not in that facility. It can be inferred that the offender proffered that information in an endeavour to deflect Ms Muldoon from making further inquiries about the deceased's whereabouts even though he was plainly aware that she was not in that facility. 22The Crown also relied upon a body of evidence from more that 30 persons who lived in close proximity to 2/86 Darley Road i n support of its contention that the deceased had been pursued to the intersection of Darley and Addison Roads by the offender. It was further contended that it was there that they had had an altercation before she had continued along Addison Road and up into High Street. Indeed, there was evidence from two witnesses who heard a young woman in distress in the vicinity of the pathway which runs between High Street and Darley Road. From that body of evidence it is clear that the offender had ample opportunity to kill the deceased at some stage in the early hours of that morning. 23That group of witnesses related what they had heard and/or seen in the early hours of the morning of 12 March 2004. Some of them lived in Darley Road itself, some of them in Addison Road and some in High Street. Not surprisingly, the various witnesses gave evidence of having heard and/or seen quite different things. A few witnesses said, for example, that they had heard the sound of footsteps. Several of them gave evidence that the sounds which they had heard indicated that the person was wearing high heeled shoes. That testimony was at odds however with other evidence about the state of the deceased's footwear. Some witnesses said that they had heard the sound of only the one person screaming whereas other witnesses thought that there were two people involved in what appeared to them to be a domestic argument or some kind of drunken encounter. Still other witnesses thought that a male person was also involved but that he was either trying to calm the female down or that he was providing comfort to her. 24Notwithstanding those differences in the accounts given by the various witnesses, it is clear that the version of events which the offender provided to 'Ray' bears significant similarity to what emerged from the evidence given by the various neighbours who lived in the vicinity of Darley Road and surrounding streets. A number of them provided descriptions of the screams which they had heard. They were described by two witnesses as being "bloodcurdling", and by others as "spine-chilling", "piercing" and "hysterical". The screams were of such a nature as to draw a number of the witnesses out of their residences and on to the street in order to investigate what the disturbance was about. Some of those persons even equipped themselves with items such as broomsticks. I accept that that body of evidence demonstrated that the screams were those of a young woman in distress and not the type of noise that might have arisen from a domestic dispute or from party revellers. The overwhelming inference is that the screams were made by the deceased in the period immediately after she had run out of the Darley Road premises. I am not, however, able to determine with any degree of precision what caused her to scream in that manner. 25There is evidence of an objective nature from which it can be inferred that the deceased ran out of those premises at some time shortly after 5.40 am. A COPS entry completed at 5.51am records that Karen Elmore, who lived with her husband in an apartment overlooking the intersection of Addison and Darley Roads, reported to police that she had heard a female screaming "Help me, Help me" on that corner. However, police who arrived in response at 6.06 am, did not see anyone either at the scene or in the immediate vicinity. Records produced by Brian Thompson, the taxi driver to whom I referred earlier, indicate that the Manly Taxi company received a call at 6.03 am. That was clearly the taxi which took Ms Muldoon to Kings Cross. 26The evidence reveals that the deceased was last seen alive at around daybreak that morning. Neither her parents nor her friends ever saw her again. Nor did she access her bank account. Furthermore, there is no evidence to indicate that she ever returned to the unit in which she had left her valuables including her wallet (which contained a large amount of money), and other possessions such as her mobile phone, jewellery and items of clothing. 27As the Crown Prosecutor conceded, it is a curious feature of the case that although some witnesses, including Anthony Elmore and Byron Tsoa-Lee estimated that they had made their way out to the street within a very short period of time, none of them saw anyone on the street when they arrived there. There was certainly no sign of the deceased or anything to indicate how she may have left the scene in such a short space of time. Mr Spencer, who appeared for the offender at the trial, nonetheless accepted that the offender's act in shouldering the deceased in her frail state to the ground could well have led to her death and that if his actions had occasioned her death then such conduct could have constituted an 'unlawful and dangerous' act. In fact the offender, in describing her as being "all just bones", acknowledged her compromised physical condition. However, given the uncertain state of the evidence, I am not in a position to conclude that it was that act on the part of the offender that occasioned the death of Ms Menhennitt. Indeed, it is common ground that the actual cause of death remains unknown as does the time and place of her death. 28The deceased's parents reported her missing to Frenchs Forest Police Station on 24 March 2004. On 3 April 2004 they spoke to representatives from the Manly Daily and the following day an article appeared in that newspaper to the effect that their daughter was missing. The deceased's parents then put up posters around the Manly area indicating that she was missing. She remained missing until 26 September 2009 when her skeletal remains were found on North Head by a couple of bushwalkers. Her body was identified from dental records. It was located in a semi-exposed position in dense bushland some distance from the main road which runs through the National Park at North Head. Such was the extent of the decomposition of the deceased's body that the forensic evidence called by the Crown was unable to establish the manner and cause of her death. The expert evidence established only that she did not die from a knife wound or from a bullet wound or from a fractured skull. That evidence did not however establish how she actually died. 29It is implicit in the jury's verdict that it was satisfied beyond reasonable doubt that it was the act or acts of the offender that caused the death of Ms Menhennitt. That meant that the Crown had established that she had not died from natural causes including the possibility that she had died of a drug overdose or that she had committed suicide or that her death was attributable to one of the many ailments from which she was suffering. 30The verdict also meant that the Crown had eliminated the reasonable possibility that any other person had been responsible for her death. That said, it was not suggested by Mr Spencer that the finger of suspicion could realistically descend upon any other person. Nor is there any evidence to suggest other than that the offender acted alone. 31The jury's verdict also signifies that the Crown was unable to establish beyond reasonable doubt that the offender acted with the requisite intention to establish the offence of murder. That is scarcely surprising particularly given, as I have said, that the Crown was unable to prove how the deceased was killed or even when, where, or why she met her fate. 32The Crown submitted however that it should be inferred that the offender was involved, either directly or indirectly, in transporting the deceased's body to the location in which it was found at North Head. It was submitted that because the jury had determined that he was responsible for her death it followed, in the circumstances, that he also had an obvious interest in disposing of her body. 33In seeking to have the court draw that inference, the Crown also relied upon the fact that in his first record of interview the offender had said that he had driven up to North Head at about 6.30 am on the morning in question to look for the deceased. When the offender was reminded by police in a subsequent interview about what he had earlier said, the offender denied that he had gone up there. Nor was he able to explain why he had originally maintained that he had done so. The Crown contended that the offender had admitted having gone there in order to explain his presence there in the event that he had been seen in the area at that time. 34The Crown also relied, in the present context, upon evidence of a conversation which took place on 28 April 2004 during which, according to Ms Muldoon, the offender told her that Stuart Robb had been driving around with the deceased's body in the boot of her (the deceased's) car. The offender had retained possession of her car until 4 April 2004 when he surrendered it to police following the article in the Manly Daily which referred to her disappearance. I would not be inclined however to place any reliance upon that conversation. Apart from the fact that Ms Muldoon's evidence concerning the conversation was both ambiguous and contradictory, no evidence was elicited from Michael Lees to support her versions of events despite the fact that Ms Muldoon maintained that he was present at the time. Furthermore, as Mr Spencer submitted, it is highly unlikely that anyone would lend a car to someone which had a body in its boot. Moreover, Mr Robb gave evidence that when he had looked in the boot of the vehicle all that he had seen was "bags and clothes". 35Notwithstanding what I have just said concerning that conversation, I am nonetheless disposed to accept the Crown's submission in support of the contention that the offender had some involvement in the disposal of the deceased's body and that he did so in order to conceal the fact that he had been responsible for her death. Indeed, no cogent reason was advanced as to why I should not so conclude. That said, I am unable to determine what the manner, timing and extent of his involvement in that activity was. Nor am I able to conclude that whatever action the offender took was other than a spontaneous response by him to a situation in which his conduct had resulted in an unintended and unexpected consequence, namely the death of Ms Menhennitt. Nevertheless, the fact that the offender was involved in some fashion in the concealment of the death of Ms Menhennitt must be weighed in the overall assessment of the objective gravity of the crime for which he stands to be sentenced. 36I also accept that it is entirely possible that the offender was motivated by more than one consideration when he pursued the deceased as she left the Darley Road premises. It is highly likely that the deceased's assault upon him during the incident which had occurred in the bathroom provided a catalyst for him to strike her. By the same token, I accept that he was also genuinely concerned to do something to stop her from screaming, particularly as it was likely that her screams would arouse unwanted attention from the police. As I have said, there was evidence from some of the neighbours that the only male voice which they had heard (which must have been the offender) had been trying to comfort the female, whom as I have said, was clearly the deceased. 37Regrettably, many questions surrounding the death of Ms Menhennitt remain unanswered. Furthermore, the task of making an assessment of the objective gravity of the offence is made particularly difficult because of the Crown's inability to establish the circumstances in which the deceased met her fate. In those circumstances, it would appear to follow that were it not for the offender's involvement in the concealment of her body, this offence would fall towards the lower end of the spectrum of offences of its kind. 38The offender was born in January 1968. He was 36 at the time of the offence and is now aged 44. He was born in Port Moresby to a young girl who was only 14 years of age. Because of his mother's age, her parents forced her to surrender the offender for adoption. In due course his adoptive mother moved to the South Coast of New South Wales and divorced her husband. The offender was fostered by his adoptive mother's brother when it became clear that she was suffering from schizophrenia. He was then removed from the care of that family when it was discovered that his foster mother had physically abused him, whereupon he was reunited with his adoptive mother and her husband. At the age of 15 the offender ran away from home to live in Fairlight. Although he had no interest in school, it appears that he remained in steady employment for the next 20 years. For much of that time he worked as a motor mechanic having completed his apprenticeship in 1989. However in 2002 he suffered a back injury and has been on an invalid pension ever since. He has a daughter who was born in 1990. Notwithstanding the fact that he has not seen her since she was 6 years old, his main objective, when he is released from custody, is to reconcile with her. 39The offender began abusing illicit drugs, including ice, heroin and cocaine as a consequence of the break up of his relationship with the mother of his daughter and the loss of contact with them. In 1996 he commenced a four year relationship with another woman with whom he lived in Byron Bay. When that relationship ended he returned to Manly to live. It was then that his life spiralled out of control because of his dependency upon illicit drugs. The offender reports that he has not used drugs since he has been in custody and his appearance in court gives credence to that assertion. 40The offender has a criminal record. He was released on probation in the Children's Court at the age of 16 in respect of offences of possessing a firearm and a prohibited weapon. In 1986 he was dealt with for an offence of high range PCA and in the following year for driving whilst disqualified. In 1989 he was fined for driving whilst cancelled and exceeding the speed limit. In 1993 he was dealt with for a further offence of high range PCA . In 1997 he was dealt with for a third time for such an offence and was also ordered to perform a community service order for an offence of driving at a speed dangerous to the public. In 1999 he was fined $100 for possessing a prohibited drug. 41Although not directly relevant, the offender has been dealt with since the commission of the present offence in 2004 for offences of goods in custody, having custody of a knife in a public place, possession of prohibited drugs, entering enclosed lands and shoplifting. With one exception, when the offender was placed on a bond, those offences resulted in the imposition of pecuniary penalties. 42I have received victim impact statements from the deceased's family. One was written by her parents and the other by her brother. The feelings which they have so eloquently and poignantly expressed and the grief which they have suffered is entirely understandable. It is quite impossible to adequately summarise that sense of loss in a few sentences and to do so, or to attempt to do so, would detract from the contents of their statement. Clearly no sentence which any court could impose can ever begin to make good that loss. I extend to the family and friends of the deceased my deepest sympathy. The approach of a sentencing judge to statements of this kind is nevertheless now well settled: see R v Previtera (1997) 94 A Crim R 76; R v FD & JD (2006) 160 A Crim R 392; MAH v R [2006] NSWCCA 226. 43In approaching the task of sentencing the offender, I must have regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (the Act) and to any aggravating and mitigating factors identified in s 21A of the Act which have particular relevance to the case. 44It is common ground that there is nothing of any relevance in the offender's criminal history. If anything it is something of a surprise, given his turbulent family background, that it is as limited as it is. More importantly, it contains no entries for offences of violence. I have also had regard to the opinion expressed by Ms Newsome, to whom I referred earlier, that the offender's actions are entirely out of character with the person whom she came to know when they shared a house for a period of 5 years. 45Clearly there has been a delay in bringing the proceedings to finality. In R v Blanco (1999) 106 A Crim R 303, in which Wood CJ at CL with whom the other members of the Court agreed, said: The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach: see, in addition to Todd and Mill , the decisions in Harrison (1990) 48 A Crim R 197 at 198-199 and King (1998) 99 A Crim R 288. [at para 16] 46It is abundantly clear that the offender was a suspect in this matter from the very early stages of the investigation and was to that extent left in a state of "uncertain suspense". On the other hand, although he was under no obligation to do so, he could have changed things at any stage by simply revealing the circumstances in which the deceased had met her fate. I am also disposed to conclude that if the offender is able to overcome his dependency upon illicit drugs, he has more than reasonable prospects of rehabilitation, particularly as he has now reached an age of some maturity. The offender is not however entitled to any amelioration of his sentence for having expressed any remorse or contrition. 47Because the circumstances of the present case are so unusual, it is common ground that there is no utility in having regard to what may be considered to be comparable cases. In any event, it is apt to recall that in R v Forbes [2005] NSWCCA 377, Spigelman CJ with whom McClellan CJ at CL and Hall J (with additional remarks) agreed, said that: As has frequently been stated, manslaughter is almost unique in its protean character as an offence. (See in particular the observations of Gleeson CJ in R v Blacklidge (unreported, Court of Criminal Appeal, 12 December 1995, esp pp2-3.) In its objective gravity it may vary, as has been pointed out, from a joke gone wrong to facts just short of murder ( R v Weinman (1987) 49 SASR 248 at 252; R v Hoerler (2004) 147 A Crim R 520 at [39]). It is also relevant to recognise that, although manslaughters can be characterised in different ways, particularly in the various contexts which may reduce what would otherwise be a murder to manslaughter, the degree of variation within any such category is generally also over a wide range. Matters of fact and degree arise in all categories of manslaughter. [at paras 133-134] 48I acknowledge that statistics held by the Judicial Commission are to be regarded with considerable circumspection. That said, in Scott v R [2011] NSWCCA 221, James J considered such statistics in relation to sentences for manslaughter. His Honour, with whom the other members of the Court agreed, observed: Statistics for the period between April 2003 and March 2010, some of which were for 234 offenders and some of which were for only 193 of those offenders, showed that head sentences varied between three years and 20 years, that the median head sentence was seven years six months and that non-parole periods varied between 12 months and 16 years, the median non-parole period being three years six months. [at para 62]. 49Although that material is of some, albeit limited utility, I must exercise my own sentencing discretion based upon the various sentencing considerations to which I have referred. 50I am disposed to accept Mr Spencer's submission that there should be a finding of "special circumstances". In so concluding, I accept that the offender's path to rehabilitation will be facilitated by an extended period in the community on parole following what will have been his first time in custody. 51What remains at the forefront of the sentencing task is the fact that a human life has been needlessly taken because of the offender's unlawful and reprehensible conduct. Furthermore, in setting the non-parole period I have borne in mind the need to fix the minimum period which the offender must spend in custody. Sentence 52For the manslaughter of Melloney Menhennitt, the offender is sentenced to a non-parole period of 4 years and 6 months to commence on 20 January 2010 and to expire on 19 July 2014 with a total sentence of 7 years and 6 months imprisonment to expire on 19 July 2017. The offender is eligible for release on parole on 19 July 2014.