[2001] HCA 67
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
[2010] NSWCCA 194
Fuller v R [2022] NSWCCA 203
JM v R (2012) 223 A Crim R 55
[2012] NSWCCA 83
Paterson v R [2021] NSWCCA 273
R v Thompson
Source
Original judgment source is linked above.
Catchwords
[2013] HCA 37
Cheung v R (2001) 209 CLR 1[2001] HCA 67
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1[2010] NSWCCA 194
Fuller v R [2022] NSWCCA 203
JM v R (2012) 223 A Crim R 55[2012] NSWCCA 83
Paterson v R [2021] NSWCCA 273
R v ThompsonR v Houlton (2000) 49 NSWLR 383
Judgment (9 paragraphs)
[1]
Background of disadvantage and mental health issues of the offender
Ms Edwige assessed the offender as suffering complex developmental trauma which has been left untreated and so he has misused substances to manage his trauma symptoms. His exposure to significant disadvantage has impacted on his social and emotional wellbeing, and he has evidenced emotional and behavioural dysregulation from an early age and has externalised this trauma through his conduct and risk- taking behaviours.
Ms Edwige concluded that at the time of the offence, the offender was suffering from a mental health impairment that was clinically significant, namely post- traumatic stress disorder and substance use disorder involving alcohol. She concluded that these conditions had an impact on the offender's functioning at the time of the offence and that his complex developmental trauma and post-traumatic stress disorder (PTSD) impacted on his ability to regulate his behaviour and his emotions and affected his ability to make appropriate decisions and exercise good judgment.
Ms Edwige also offered the opinion that he is likely to find the custodial environment more stressful, triggering and difficult because of his mental health conditions, particularly the PTSD.
Sentencing principles relevant to sentencing offenders with mental health issues are set out in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] to [178] per McLellan CJ at CL:
"[177] Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing. They can be summarised in the following manner:
● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.
● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.
● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced.
● It may reduce or eliminate the significance of specific deterrence.
● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public.
[178] I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence." (citations omitted)
I also note the comments of Simpson J in Aslan v R [2014] NSWCCA 114 at [34] to the effect that none of these principles are absolute, but direct attention to considerations that experience has shown commonly arise in such cases.
I have carefully examined the report of Ms Edwige and the facts of the offending and concluded that there is a clear causal connection between the mental health conditions Ms Edwige has diagnosed and the actions of the offender that morning. Given that finding, I have also concluded that I should give less weight to specific and general deterrence than I otherwise would.
In this regard I note and agree with the comments of Rothman J (with whom Latham and Davies JJ agreed) in Tammer-Spence v R [2013] NSWCCA 297 at [36]:
"[36] In sentencing young offenders (or persons with a mental illness), the sentencing principles make clear that retribution may be of less significance and considerations of rehabilitation may be of more significance. Further, even in relation to retribution, the youth of an offender may be a mitigating factor." (citations omitted)
I have also taken into account the counterpoint to those considerations that retribution and deterrence should not give way entirely, or even substantially to the interests of rehabilitation in the context of a young offender: JM v R (2012) 223 A Crim R 55; [2012] NSWCCA 83 per Simpson J at [108].
I am also of the opinion that the offender's mental health will continue to negatively impact his time in custody and make it more onerous for him than if he did not have those mental health conditions.
[2]
Moral Culpability
In Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 ("Bugmy") French CJ, Hayne, Gummow, Kiefel, Bell and Keane JJ stated that:
"[43]… The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
[44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender."
I am required to determine whether the offender's adversities and disadvantage reduces his moral culpability. As well as her assessment of the offender personally, the report of Ms Edwige includes some well traversed research that contextualises the events in the offender's history and helps to provide a broader understanding of the ongoing and profound impacts of childhood deprivation and exposure to violence such as the offender had experienced.
I agree with and gratefully adopt the following observations by Yehia SC DCJ (as her Honour then was) in R v Tsingolas [2022] NSWDC 34 at [87] to [90] as to the role and use of that research:
"[87] ... To an extent greater than ever before, sentencing Judges are now assisted by a body of research into the impact of various forms of childhood disadvantage, deprivation and trauma that may have an ongoing and profound impact upon the individual.
[88] Sentencing Judges in the 21st Century have the benefit of that assistance. The material provided is expert research and study that allows for a better understanding of the potentially profound impact of an individual's childhood experiences upon, amongst other things, their capacity to mature, control impulse and self-regulate. The research complements the psychological, psychiatric and other evidence relied upon in the individual case, and can be of substantial assistance in explaining the offending conduct, assessing moral culpability and/or informing the appropriate penalty.
[89] This approach has been recognised and utilised in a number of cases in the Court of Criminal Appeal. In Kentwell V R (No 2) [2015] NSWCCA, Bathurst CJ and McCallum J (as she then was) agreed with the remarks of Rothman J when re-sentencing the appellant. Those remarks included references to research conducted by Professor Baumeister, which made it clear that extreme social exclusion will likely result in antisocial behaviour and most likely result in criminal offending, a factor relevant to that case.
[90] In Perkins v R [2018] NSWCCA 62, Fullerton J referred to the insidious effects of exposure to family and domestic violence on children in their formative years, and the potential for that exposure to play out in unforeseen ways as a young child develops from adolescence into adulthood, a matter "well researched and documented". Her Honour referred to recognition of these effects and the potential for lasting harm, finding expression and application in a range of academic and forensic disciplines: [99] [100] [101] [102] [103]."
The Crown identified the following matters as relevant Bugmy considerations: domestic violence, family alcohol abuse, family drug abuse, death of a sibling to drug abuse, incarceration of family members and community drug and alcohol use and violence.
In considering these factors and the comments of the High Court in Bugmy, I am very mindful of the fact that many others in the community of Wellington, and indeed other places, have been exposed to the same or similar difficulties and have not offended and do not respond in the way that the offender did that morning.
I have concluded that these matters do reduce the offender's moral culpability for his actions that morning, but there must remain reflected in the sentence I impose, an element of general and specific deterrence. All members of our community should be protected from violence and its consequences and there needs to be appropriate recognition of and retribution for the loss of Bradley to his friends and family.
[3]
The plea of guilty
As I have said, there was an offer to plead guilty to manslaughter on the basis of excessive self-defence at case conference when the matter was still in the Local Court prior to committal. That offer was not accepted until August 2022. The Crown acknowledged that in the circumstances the offender is entitled to the appropriate discount under s 25E(3)(a) of the Sentencing Act which is 25% and I have applied that discount to the sentence I will impose.
[4]
Aggravating and mitigating factors
Section 21A of the Sentencing Act requires me to take into account certain aggravating and mitigating factors.
It is an aggravating factor that the offender was the subject of conditional liberty at the time of the offence because of the ICO imposed in September 2020.
As noted by the Crown, use of violence and use of a weapon, whilst present, are elements inherent in the offence and so not aggravating factors.
Senior counsel for the offender submitted that I should take into account the following mitigating factors:
1. That the offender has good prospects of rehabilitation: s 21A(3)(h);
2. That the offender has shown remorse: s 21A(3)(i).
In order for me to find that the mitigating factor of the offender's remorse exists, I must be satisfied that the offender has provided evidence that he has accepted responsibility for his actions and acknowledged the loss caused by his actions. I have no doubt at all that that is the case, and that the offender fully appreciates the enormity of what he has done and that he is deeply and truly remorseful.
He has consistently demonstrated remorse for what occurred. Firstly, during the interview with police shortly after his arrest. Notwithstanding his denial that he had used a knife, when he was advised of the death of his cousin the offender was distraught. His comment "Fuck. That's cause of me?" and his visible distress are the first demonstrations of his remorse as to what had happened and his role in it. I accept that any comments to the effect of "it wasn't me bra" should properly be construed as his disbelief as to what was unfolding and his horror at what he had caused.
The offender's distress at learning of the passing of his cousin was evident during the course of the trial when his interview with the police was played for the jury. His difficulty in coming to terms with what had happened and his role in it was demonstrated in a visceral way, not by, as this Court sometimes hears, empty and insincere words of apology. This is in my view genuine and deeply felt contrition of the type described by Spiegelman CJ in R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [117] to [118].
The offender's contrition and remorse is also demonstrated by his consistent preparedness to plead guilty to the count of manslaughter and the fact that he maintained that position, despite the way that the trial unfolded.
The offender has expressed to the author of the psychological report, Ms Edwige how he feels about his offending. It is clear that his distress about his conduct that led to the death of his cousin is constantly on his mind. Ms Edwige records the offender as having said: "Every day I wish I could have done things differently. Wish it had never happened. It's too hard to talk about". I accept that this is something about which he regularly ruminates, and no doubt will, for the rest of his life.
The character references before the Court speak of a young man who is well regarded by those who knew him in his local community. They were able to see qualities in him that include being respectful and hardworking. I do not think that by any stretch that means that the offender was perfect.
Of significance however is the fact that the offender has a very limited criminal history. He has only one prior entry on his record and this is consistent with what he told Ms Edwige about associating with peers who were involved in criminal activity when he was younger and not wanting to be like them. The fact that the prior offence occurred in 2019 and on the face of the result, appears to have involved the consumption of alcohol, is also consistent with the narrative provided to Ms Edwige as to his excessive drinking from the age of 18.
There is clearly a history of very problematic alcohol use, but he has demonstrated insight into that and the problems it causes. Ms Edwige considered the offender as someone with positive prospects of rehabilitation, provided that he is able to access the types of treatment and support he needs in the community. Mr and Mrs Stone have provided references noting the offender's intelligence and good work ethic. I accept that the offender has real insight into the carnage he has caused Bradley's family and friends and to his own family and friends by his actions.
I have concluded that the offender has good prospects of rehabilitation and he is unlikely to reoffend.
[5]
Comparative cases
Both the Crown and counsel for the offender drew my attention to various cases that bore some similarities but many differences to the circumstances here. I have read them and considered them but concluded that they provide little assistance to me given the very particular circumstances of this case.
[6]
Special circumstances
Senior counsel for the offender submitted that a finding of special circumstances should be made pursuant to s 44(2B) of the Sentencing Act and that I should vary the usual ratio of parole to head sentence to provide for a longer period on parole. The basis submitted was the offender's youth, this is his first time in custody and he needs parole support for reintegration into the community, particularly regarding alcohol use and his mental health conditions and associated needs for treatment and counselling.
I find there are special circumstances for the above reasons. There is also a need for support to reintegrate into the community and set up and maintain supports and structure to ensure a sustainable supported social setting, noting the particular features here involved causing the death of a young man who was part of the offender's own extended family and social groups.
[7]
Pre-sentence custody
In September 2020 the offender was placed on an Intensive Correction Order of 9 months length for affray, involving fighting near a pub in Wellington around 11:00pm on the night of 22 November 2019. It was a condition of the ICO that amongst other things, he must not commit any other offences and must abstain from alcohol. Because of the offending on 2 January 2021, the ICO was revoked and the offender was sentenced to 5 months and 3 days imprisonment expiring on 23 June 2021.
The Crown submits that given the circumstances, the offender's sentence for manslaughter should commence on a date chosen by the Court between 3 January 2021 and 23 June 2021.
The offender has spent 2 years and 39 days in custody since his arrest on 3 January 2021. The revocation of the ICO was because of this offending. I do not in those circumstances consider it necessary in order to reflect the criminality of the offences, to accumulate the sentence I will impose on top of that revocation. I accept the submission of senior counsel for the offender that it is appropriate to commence the sentence on 3 January 2021. That time will be taken into account as time served.
Synthesising these findings and principles, I would commence with a starting point of 8 years, which is reduced by 25% for the early guilty plea. To give effect to my finding of special circumstances, but still reflect the relevant criminality, I have adjusted the proportion of the sentence that must be served in custody, and set a non-parole period of 3 years and 6 months. I will now formally impose sentence. Please stand Shelby Stanley.
[8]
Conclusion and sentence
For the offence of manslaughter I impose a sentence of imprisonment of 6 years commencing 3 January 2021 and expiring on 2 January 2027, with a non-parole period of 3 years and 6 months commencing 3 January 2021 and expiring on 2 July 2024.
The offender will become eligible to be released on parole on 2 July 2024.
I am obliged to tell you of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to "serious offences" including the offence for which you have been sentenced.
In summary, this means that the State can apply to the Supreme Court for an order that you continue to receive supervision or be held in detention at the end of your sentence if the Court considers you would be a "high risk offender" who poses an unacceptable risk of committing a serious offence.
It is therefore in your interests to engage in rehabilitation opportunities that may be offered to you in the course of your sentence.
[9]
Amendments
16 May 2023 - Par [1]: typographical error
Par [31]: typographical error. Corrected "acutely"
Par [43]: grammar correction
Par [49]: Judges' titles and punctuation corrected
Par [53]: grammar and punctuation corrected
Par [56]: typographical error
Par [59]: grammar corrected.
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Decision last updated: 16 May 2023
The purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") are:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from
committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.
The maximum penalty for the offence of manslaughter is a term of 25 years imprisonment: s 24 Crimes Act 1900 (NSW). There is no standard non-parole period for this offence.
My task is to make findings about the objective and subjective facts relevant to sentencing the offender, consistently with the agreed facts. Any findings that are adverse to an offender must be arrived at beyond reasonable doubt: Cheung v R (2001) 209 CLR 1; [2001] HCA 67 at [14] per Gleeson CJ, Gummow and Hayne JJ. Any findings that favour the offender must be on the balance of probabilities.
The objective gravity of the offence
The offender offered to plead guilty to manslaughter on the basis of excessive self-defence. That plea was initially rejected but ultimately accepted in August 2022.
The law excuses offences, even fatal offences, if they were done in self-defence. Section 421 of the Crimes Act provides for such circumstances:
421 Self-defence - excessive force that inflicts death
(1) This section applies if -
(a) the person uses force that involves the infliction of death, and
(b) the conduct is not a reasonable response in the circumstances as he or she perceives them,
but the person believes the conduct is necessary -
(c) to defend himself or herself or another person, or
(d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.
(2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter.
Central to the sentencing exercise is the identification of the circumstances as the offender, (rightly or wrongly), perceived them: Smith v R [2015] NSWCCA 193 per Simpson JA with whom Leeming and Hamill agreed. The offender's perception of the circumstances is relevant to the determination of what he believed was necessary to do in order to defend himself (s 421(1)(c)) and how far the conduct he engaged in was out of proportion with what was a reasonable response in those circumstances: s 421(1)(b).
The offender's perception of the circumstances must include things that he knew and/or believed and/or perceived about the people outside his house that morning.
These matters are relevant to the assessment of the degree of unreasonableness, (or excessiveness), of his response.
I accept that the offender taking the knife from the kitchen and running out of the house with it was a reaction to the threat of the "two boys" approaching the home. It was reactive, spontaneous and not planned. Although the incident occurred in public, it was directly in front of the offender's home and it was this very location that contributed to the perceived need on the offender's behalf, to defend himself. He was seen waving the knife around. In doing so he stabbed Bradley in the abdomen and caused his death.
Given the variety of circumstances in which the offence of manslaughter can be established, it is best to avoid identifying where a particular offence of manslaughter falls on a hypothetical range of other manslaughters: Fuller v R [2022] NSWCCA 203 at [82] per N Adams J, Brereton JA and Dhanji J agreeing: Paterson v R [2021] NSWCCA 273 at [33] per Beech-Jones CJ at CL with whom Hulme J and N Adams J agreed.
Even the subcategory of excessive self-defence does little to narrow, let alone identify, the array of circumstances that situations can present and their relative criminality. Every case is so very different. A table of many "excessive self-defence" cases and the sentences given by judges of this Court was provided by the Crown. This table illustrates the many different circumstances and human behaviours that lead to the offences of manslaughter. It is difficult to obtain any real guidance from those other decisions but I have read them and taken them into account.
The taking of the life of another person is a very serious matter. Even taking into account the offender's reaction to his sense of danger and threat that morning, a sentence of full-time custody must be imposed.