• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
KL v R [2026] NSWCCA 87
LK v R [2025] NSWCCA 143
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Newburn v R [2022] NSWCCA 139
Paterson v R [2021] NSWCCA 273
R v Aljubouri; R v YA; R v Shaker [2019] NSWSC 180
R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unrep)
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
R v Gale [2020] NSWSC 808
R v Hoerler [2004] NSWCCA 184; (2004) 147 A Crim R 520
R v JM (Sentence) [2024] NSWSC 1345
R v MD; R v BM; R v NA; R v JT [2005] NSWCCA 342; (2005) 56 A Crim R 372
R v MR, JB and CS (young persons) (No 5) [2024] NSWSC 912
R v Stanley (No 2) [2023] NSWSC 74
R v TH [2025] NSWSC 1578
Taylor v R [2026] NSWCCA 32
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category: Sentence

Parties: Rex (Crown)
Jacob Tammer-Spence (Offender)

Representation: Counsel:
V Garrity (Crown)
A Evers (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Australian Criminal Law Group (Offender)

File Number(s): 2024/00355867

JUDGMENT

1. At about 7:35pm on 23 September 2024, Sitaleki Filihiahekava (“the deceased”) was walking along Marrickville Road, Marrickville, when he was stabbed with a knife by the offender. The deceased died at the scene as a result of that single stab wound to his chest.

2. On 25 September 2024, the offender was arrested and charged with his murder. The offender entered a plea of not guilty.

3. The matter was listed for trial before a jury commencing on 20 July 2026. On 23 July 2026, and prior to the jury being empanelled, the offender was re-arraigned on an indictment carrying the single charge of murder. He pleaded not guilty to the murder, but guilty to the manslaughter of the deceased. The Crown accepted his plea of guilty to manslaughter in full satisfaction of the indictment on that day.

4. The offender thus comes before the Court for sentence for the offence of manslaughter. It is agreed between the parties that the basis on which the offender is guilty of manslaughter is that, when the offender stabbed the deceased, he was acting in self-defence but he was using unreasonable force in doing so. [1]

5. The offence of manslaughter carries a maximum penalty of 25 years imprisonment. [2] There is no standard non-parole period.

Victim impact statement

6. It is the nature of sentence proceedings that not as much is known about the deceased as is known about the offender. I received a detailed victim impact statement from the sister of the deceased, who read out a statement on behalf of members of the deceased’s family. It is clear that the death of the deceased has been a great loss to members of his family, and that they have suffered, and will continue to suffer, significantly consequent on that loss. He was a much-loved son, grandson, brother and friend.

7. I expressed my sympathy to Ms Filihiahekava and the deceased’s family during the hearing and I again do so as part of this judgment. I will have regard to her words of in determining the sentence to the extent that I am permitted to do so by law.

Evidence on sentence

8. The Crown relied on the following evidence on sentence:

9. Crown sentence summary;

10. The offender’s criminal history;

11. The offender’s custodial history;

12. Statements of agreed facts in relation to a number of offences committed by the offender in 2011;

13. The judgment of the Court of Criminal Appeal in the offender’s appeal against sentence in respect of the 2011 offences: Tammer-Spence v R [2013] NSWCCA 297;

14. The remarks on sentence of Arnott SC DCJ dealing with offences committed by the offender in 2016;

15. The judgment of the Court of Criminal Appeal in respect of the offender’s appeal against sentence for the 2016 offences: Tammer-Spence v R [2021] NSWCCA 90;

16. Corrective Services NSW case notes and reports regarding the offender’s time in custody; and

17. The victim impact statement of Ms Filihiahekava (to which I have already referred).

18. The offender relied on the following documents:

19. The reports of Dr Andrew Ellis, psychiatrist, dated 19 April 2026 and 3 August 2026, respectively;

20. The report of Dr Katie Seidler, clinical and forensic psychologist, dated 20 October 2008;

21. The report of Dr Olav Neilssen, psychiatrist, dated 12 June 2012;

22. The report of Dr Carollyne Youssef, clinical and forensic psychologist, dated 4 August 2026;

23. Reference of Amma Asantua Atuahene Cust (undated but received by the offender’s solicitor on 1 August 2026);

24. Reference of Sarah Tammer dated 30 July 2026;

25. Community Corrections case notes;

26. Corrective Services NSW records relating to the offender’s time in protective custody and segregation;

27. A chronology of searches conducted by police on the offender after his release on parole in the period March 2022 to October 2023; and

28. An article from the Daily Telegraph dated 25 September 2024.

29. In addition, the offender gave evidence during the sentence hearing on a range of matters, including his background, the circumstances of the offending and remorse.

30. The parties relied on a set of agreed facts. Most, but not all, of the facts were agreed.

31. The events were captured on CCTV footage to a certain extent, but the CCTV footage does not disclose the nature and extent of any exchange between the offender and the deceased which lead to the death of the deceased. No evidence was adduced on the sentence hearing from the two persons who were walking with the deceased at the time of his death.

Circumstances of the offending

13. As I have said, much of that to which I will refer comes from the agreed facts. To the extent that there are any findings made based on matters which are not agreed, I will make clear as to the basis of those findings. It is important to emphasise that I must not make any findings adverse to the offender unless I am satisfied of those matters beyond a reasonable doubt. [3]

14. On the evening of 23 September 2024, the deceased and two friends were having dinner at the Guzman y Gomez restaurant on Marrickville Road, Marrickville.

15. At the time, the offender lived nearby with his girlfriend. At approximately 7:26pm, the offender’s girlfriend sent an SMS text to the offender which read, “Bondi burger meal single fillet Solo”. This was a reference to a takeaway order from the Oporto restaurant on Marrickville Road which was located only a short distance from the Guzman y Gomez restaurant.

16. The offender left his home and went to collect the takeaway order from the Oporto restaurant. He was observed on CCTV walking along Marrickville Road past the Guzman y Gomez restaurant and then returning a short time later.

17. Around that time, the deceased and his friends left the Guzman y Gomez restaurant. They walked out onto Marrickville Road, turned east, and stood adjacent to the intersection with Silver Street. The offender was then observed on CCTV footage walking from Marrickville Road into Silver St and then turning back around and walking back to the corner of Marrickville Road towards the deceased and his friends. At the same time, the deceased walked with his hands in his pockets towards where the offender was standing.

18. It is an agreed fact that there was a verbal altercation between the offender and the three men, which was overheard by nearby bystanders. During this verbal altercation, the offender stabbed the deceased once to the right front chest. This caused a penetrating wound into the right side of the heart.

19. Although precisely what was said is not the subject of an agreed fact, the offender gave evidence on the sentence hearing as to what occurred.

20. The offender said that as he was walking along Marrickville Road, he did not notice anything in particular – just people on the street. After turning into Silver Street, he heard someone yell out “hey hey”. He said that he did not think they were yelling out to him at first but turned around and saw the deceased standing on the corner looking at him and yelling out something.

21. The offender said he had never seen the deceased before in his life. At the time, the offender was involved in making rap music. He said he rapped and produced rap music. His music was published on some streaming platforms and YouTube. The offender said that from time-to-time people did come up to him on the street and say something to him.

22. On hearing the deceased yell out “hey, hey”, the offender did not think anything bad was going to happen. He heard the deceased say, “are you the rapper?”. At this time, the deceased started to walk closer towards him, and the offender was walking towards the deceased. When the deceased got closer to him, he said “I heard you lived around here somewhere”.

23. The offender said the deceased then said, “[Y]ouse had something to do with what happened up the road”. The offender said he did not know what the deceased was talking about. The deceased continued, “The shooting at the barbers”. The offender realised then what the deceased may have been talking about, remembering that there had been a shooting up the road.

24. When giving evidence, the offender gave some slightly different versions of what the deceased said to him. He said initially that the deceased had said, “[D]on’t play dumb or I’ll fucking pop you right now”. According to the offender, the deceased was then moving his hand towards his bag. However, later in his evidence, he left out the word “or”, converting the deceased’s words into a direct and immediate threat that he was going to shoot him. The offender did not express any uncertainty about what was said when first asked by his own counsel. He professed to have precise recollection. I accept his evidence when first given, rather than when he was attempting to justify things later on.

25. In any event, the offender said that he thought he was going to be shot. He thought he was going to be killed. He said that the two other persons came up either side of him to his left and right. The offender said that he thought he would die. He thought this because the deceased had said he was going to shoot him. He understood “pop” to mean “shoot”, particularly in the context that the deceased had raised the shooting up the road.

26. At the time, the offender was carrying a knife in his hooded jumper pocket in front of him. He said he pulled the knife out and jumped away from directly in front of the deceased. He then stepped to his left and swung the knife at the deceased and hit him once with the knife.

27. The offender said he did that because he thought he was going to be shot, and he was defending himself. He said he wasn’t aiming at any particular part of the deceased’s body, but he realised he had struck him.

28. The offender said that the person to the right of the deceased punched the offender in the head. He was a bit dazed, but he ran off toward his house. He then realised that he had dropped his keys and his phone, and he went back to collect them. He was concerned that his phone case contained cards which had his address on them. When he got back home, he did not go through the front door but went through an alleyway because he did not want anyone to see the house he was entering.

29. Although this version is not part of the agreed facts, there is no evidence contrary to the offender’s evidence. There was some challenge by the Crown to the version given by the offender but the offender’s evidence on what happened was difficult to dispute in circumstances in which the deceased’s two friends declined to assist.

30. It is an agreed fact that there was a verbal altercation between the offender and the deceased, and that the offender struck out at the deceased with a knife because he thought his own life was in danger. He thought he may be shot if he did not act to protect himself. It being agreed, I accept that is what occurred. Further, I accept the evidence of the offender as to the words that were spoken during the verbal altercation, and the way in which he responded.

31. It is also agreed, and I accept, that the response of the offender whilst initiated in self-defence was excessive and not a reasonable response in all the circumstances.

32. After going home, the offender hid the knife in a pot plant in a neighbouring property. The deceased collapsed at the scene. Although he was treated by an off-duty doctor and by paramedics, he did not respond and died at the scene.

33. The entire altercation lasted no more than 30 seconds. No firearm or other weapon was found in the belongings of the deceased. I accept the deceased was not carrying any firearm at the time.

34. After hiding the knife and going back home, the offender was driven by his partner to an unknown location.

35. The police commenced investigations immediately. They quickly identified the offender, having regard to a distinctive tattoo on his right shin which was shown on CCTV footage. The next morning, the offender’s partner sent a text message to the mother of the offender, saying:

“Sarah something bad has happened three men tried to attack Jacob last night when he went to get me dinner he’s ok but I need you to contact yatungka please and tell her to call Joe ASAP for Jacob he needs the lawyer.”

36. The car in which the offender and his girlfriend were travelling broke down that morning and needed to be towed away. The offender’s mother collected them. At approximately 4:46pm, the offender’s girlfriend sent a text to her mother in the following terms:

“I’m just scared mum

We both are we didn’t want this we didn’t ask for this I just wanted dinner I wish I went myself

They wouldn’t have attacked me”

37. The offender was arrested around 5:40pm the following day outside the home of his stepmother. A search warrant was executed at the offender’s stepmother’s premises, where some of the clothes which the offender was seen on CCTV footage wearing at the time of the offence were found.

38. Whilst in custody, the offender made contact with his brother, sending him a note describing where he had hidden the knife. On 21 October 2024, the offender called his brother to check that he had located the knife. In the meantime, the note had been handed into the police. The knife was found in the pot plant where the offender had left it.

39. There is no evidence that the offender and the deceased were known to each other prior to 23 September 2024. The death of the deceased resulted from a verbal altercation, to which the offender reacted by swinging a knife at the deceased and stabbing him in the chest. As I have said, the offender then fled the scene and the deceased died at the scene.

40. As the Court has said on a number of occasions, the carrying of knives by members of the public too often leads to tragic consequences. [4] In this case, the deceased was killed consequent on nothing more than an exchange of words, albeit those words included a threat. The offender finds himself facing a lengthy period in custody because he decided to carry a knife even when simply going to get takeaway food a matter of minutes away from where he lived.

Seriousness of the offending

41. The crime of manslaughter involves the felonious taking of human life, which is regarded by the law as a most serious crime. [5] It has often been emphasised that the circumstances giving rise to a conviction for manslaughter and the degrees of culpability are so varied that no established sentencing tariffs can be applied. [6]

42. The seriousness of the offending is determined by reference to the facts of the killing and not the class of manslaughter. [7] Each case depends on its own facts and circumstances.

43. The process of sentencing involves the instinctive synthesis of objective and subjective factors. [8] The assessment of the objective seriousness of the offending is part of the discretionary process of determining where within a range of sentences that might be imposed on an offender, an appropriate sentence might sit. It is important to emphasise that any assessment of objective seriousness is not a reflection of the impact that the death of the deceased might have had on others or in any way intended to minimise the feelings of grief or loss experienced by members of the deceased person’s family.

44. The offender is being sentenced for the crime of manslaughter on the basis that he acted in self-defence, but with excessive force having regard to s 421 of the Crimes Act 1900 (NSW), which is in the following terms:

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.

45. The Crown accepts that the offender believed his conduct was necessary in order to defend himself. However, his conduct in stabbing the deceased was not a reasonable response in the circumstances as he perceived them.

46. An important factor in assessing the seriousness of the offending in a case involving self-defence by excessive force is the extent to which the offender’s conduct was unreasonable or excessive. Put another way, it is relevant to determine whether the defendant’s conduct was only marginally excessive or whether it may be considered that his conduct was somewhat more excessive, or even grossly unreasonable or excessive, in all the circumstances.

47. In this matter, the offender accepts that his conduct was excessive or unreasonable, but says that it was only marginally so. The offender says that he was in fear of his life at the time, and that he lashed out with the knife fearing that he was about to be shot. He says that he had no other option in circumstances in which he did not consider that there was any possibility of running away or taking any other action so as to prevent harm to him.

48. Of course, it is important not to approach this issue with hindsight. That is, the Court does not look backwards at what the position of the deceased was and form a view about the offender’s conduct. This is because, as s 421 specifies, regard must be had to the circumstances as the offender perceived them. [9] It is agreed that the offender perceived that it was necessary to defend himself. I accept that he thought he might be shot. Further, the subjective circumstances of the offender are relevant in terms of his perception and conduct. As I will discuss later in this judgment, the offender was suffering from post-traumatic stress disorder (“PTSD”) at the time of the offending. He has been exposed to a long pattern of trauma and violent behaviour, albeit he has also been involved in violent behaviour himself now for a lengthy period.

49. It is almost inexplicable that the offender chose to take a knife with him just to walk down the road to get some takeaway food. However, that is what he did. That can only be explained by the offender’s general fearfulness and apprehension of violence, and his own hyper-vigilance (a symptom of PTSD) to events which may lead to violence being inflicted upon him. In some sense, this explains the offender’s very quick response to the threat made by the deceased.

50. However, although the offender thought that the deceased may have a gun (when in fact he did not have one), the offender did not see any gun being produced. He reacted before he saw any gun. Further, the threat was made in the context of a warning to the offender not to play dumb or the deceased would “pop” him, rather than a more direct “I’ll pop you”.

51. The offender reacted to this by lashing out with his knife. He made no attempt to run away. There is no suggestion that either the deceased or the deceased’s two friends produced any weapons prior to the deceased being stabbed.

52. Whilst I must have regard to the fact that the offender suffered from hypervigilance by virtue of his PTSD, which might explain his very quick overreaction, I do not accept that the offender’s conduct was only marginally unreasonable. In my view, it was unreasonable and excessive to a significant extent.

53. That does not mean that the offender did not perceive that it was necessary to defend himself, but his response to the need to defend himself was quite significantly excessive in all the circumstances.

54. The offending is aggravated by the actual use of a weapon, being the knife, pursuant to s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”). As is often said, the carrying of a knife brings with it the increased risk of violence and, as is exemplified in this case, the risk of serious injury or death to another person. On any view, the offender was quick to use his knife.

55. In my view, the offending was of a very serious nature. Certainly, it did not involve any planning but it was committed in circumstances in which the offender was carrying a knife in a public street and was quick to use it. I accept that the offender was acting in fear of violence to himself, that is, of being shot, but he responded very quickly to the threat against him by lashing out with his knife in circumstances in which the deceased had not produced any weapon and had not demonstrated any violence towards him.

56. It is not necessary that I identify where within the range of seriousness the offending might fall. In Paterson v R, the Court of Criminal Appeal observed, at [33], that:

“… an assessment of where a particular crime of manslaughter is to be placed on some hypothetical range of manslaughters or types of manslaughters is not only not obligatory, it is unlikely to be of much utility … it is an analysis that is best avoided.” [10]

57. I accept that the killing of the deceased was an objectively serious example of manslaughter.

Subjective circumstances

58. The offender is currently 33 years old. He has been in prison since his arrest on 25 September 2024, although there is an issue as to the extent to which the whole of that period should be considered referable to the current offending as opposed to him completing an earlier sentence.

Personal history

59. As I have previously outlined, the offender gave evidence on 6 August 2026. His evidence was quite extensive. His evidence supplemented some of the subjective material on which he relied (as well as giving evidence as to the circumstances of the offending).

60. Some of the material relied on by the offender relates back to an earlier time and perhaps his earlier offending.

61. The offender’s evidence was challenged in cross-examination on a number of issues, but not on his personal background. In circumstances in which he gave evidence and was available for cross-examination, I can more readily accept the history provided in the medical reports relied on by the offender.

62. The offender comes from a troubled background. The relationship between his parents broke down when he was only 18 months of age. He lived primarily with his mother, although maintained contact with his father. He has two half-brothers and two stepsisters. There is some difference of reporting as to his relationship with his father. He appears to have been quick to anger, although not violent. The offender had a good relationship with his mother, albeit his mother had difficulty imposing discipline and enforcing boundaries.

63. The offender developed behavioural problems as a child. His mother remarried when he was aged about 8. His relationship with his stepfather was poor. He says that his stepfather was disparaging and disrespectful to him and violent on occasion. This made it hard for him to stay in the family home.

64. The offender started running away from home around the age of 12. He says the Department of Community Services became involved. His initial schooling appears to have been happy and successful but his engagement in school appears to have diminished late in primary school. He progressed to secondary school but could not be bothered with it. In the latter stages of Year 8, the offender was sent to a non-mainstream school for children with behavioural problems. He was transferred to a mainstream school again in Year 9.

65. He says that at the age of 14, he was sexually assaulted by an adult male at night. He had by that time been first exposed to cannabis and had become dependent upon the drug. The offender first came into contact with the criminal justice system in his early teens. He suggested to Dr Ellis that the sexual assault when he was 14 led to a problem of anxiety in crowds. Being imprisoned on the first occasion, he was often placed in segregation for fighting. The offender said he did not like people walking behind him or seeing drunk people, and on these occasions, he “freaks out” and has an elevated heart rate.

66. The offender reported intrusive memories of past negative events during his most recent period in custody, as well as the sexual assault. He continues to have intrusive thoughts and is seemingly hyper-vigilant. The offender maintains that he has been an alcohol and drug user since a teenager. He was smoking heroin from the age of 13, and relapsed again in 2022. He has experimented with ecstasy, LSD and psilocybin.

67. As the offender explained in evidence, he developed an interest in music and became known for his rap music. He has released songs through YouTube and streaming services. He received some income from his work and it does seem that he developed a reputation of some sorts for his rap music. Indeed, that was the basis on which there were initial words between the deceased and the offender.

Criminal history

68. The offender has a significant criminal history, particularly in respect of violence or threatened violence.

69. The offender’s relevant criminal history commenced in 2011 involving a number of offences, including robbery and robbery armed with an offensive weapon. He was convicted in 2012 and sentenced to an aggregate sentence of imprisonment of 6 years with a non-parole period of 3 years and 6 months. This offending involved a number of offences committed in and around Town Hall train station during the period October-November 2011, which involved either:

70. Engaging in consensual sex with victims in public toilets and then threatening and demanding money from them;

71. Bailing up victims, accompanied by a threat of violence, and on occasion threatening them with a knife; and

72. Stealing money and credit cards from victims and then using the credit cards to withdraw cash from ATMs and to make purchases.

73. This was very serious offending perpetrated over a less than two-month period, involving a number of victims, and on occasions the use of a knife.

74. The offender unsuccessfully appealed against his sentence, relying in particular on his drug (ice) addiction and psychological condition. He was accepted by the sentencing judge to have been a markedly disturbed young man.

75. In November 2016, the offender was convicted after a trial by jury of a number of other offences, including demand property in company with menaces, aggravated detain for advantage, and causing grievous bodily harm while being reckless as to causing actual bodily harm. In 2019, he was sentenced to an aggregate sentence of 7 years imprisonment commencing 23 November 2017 and concluding on 22 November 2024 with a non-parole period of 4 years.

76. This offending occurred whilst both the offender and victim were in custody in Long Bay jail and were sharing a cell. Almost immediately after the victim arrived at the jail and was placed into the cell with the offender, the offender told the victim that the victim had to put $1,000 into a bank account. The effect of the conversation was that if the victim did not deposit the money into the bank account, he would be bashed. The next night there was a further conversation about paying the money, after which the offender grabbed a kettle containing extremely hot water and poured the contents over the victim’s head, scalding him badly. The offender then further threatened the victim if he reported the incident to the prison officers, and continued to threaten him, demanding money and preventing him from having medical treatment for his severe burns. The victim was ultimately diagnosed with 15 per cent of his total body surface having been burnt. The offender’s appeal against sentence was dismissed.

77. The offender’s criminal history is an aggravating feature, having regard to s 21A(2)(d) of the Sentencing Act.

78. The killing of the deceased happened whilst the offender was on parole. The fact that the offence was committed whilst on conditional liberty is also an aggravating factor having regard to s 21A(2)(j) of the Sentencing Act.

79. I will come back to the question of whether time spent on completion of his earlier sentence should be taken account of in respect of this sentence later in this judgment.

Evidence of psychological issues

77. Dr Ellis opined that the offender suffered from a substance use disorder, as well as PTSD consequent upon the traumatic events that had befallen him during his life. At the time that Dr Ellis examined him in April 2026, the offender was not using illicit substances but was taking regular prescribed medication.

78. Dr Ellis also opined that it is likely that the offender experienced a reactivation of his PTSD symptoms at the time of the death of the deceased. The offender acted very quickly, falling immediately into self-protective manner. He reported a fearful and emotional state at the time. In his supplementary report (dated 3 August 2026), Dr Ellis reviewed the other medical reports, including the reports of Dr Seidler and Dr Nielssen. Dr Nielssen examined the offender in 2012 and made a diagnosis of conduct disorder and substance use disorder. Dr Ellis also reviewed the Corrective Services notes provided to him which recorded the offender’s poor behaviour whilst in custody, in respect of earlier offending including the making of makeshift weapons. Dr Ellis did not consider that any of the up-to-date or old material caused him to change his opinion.

79. Not everything that the offender reported to Dr Ellis is consistent with the evidence he gave on sentence. The Crown urges some caution in accepting the history provided to Dr Ellis.

80. I agree with that approach, but as I have already emphasised, in this case, the offender gave evidence and was available for cross-examination. He was not challenged on his essential history.

81. I thus accept that the offender suffered from a difficult and traumatic childhood which involved family violence (from his stepfather), absconding from school, turning to drugs as an early teenager, and being sexually assaulted at the age of 14. These matters have impacted upon him for the rest of his life.

82. I accept that the offender has suffered from a substance use disorder and has had ongoing problems with PTSD. He has had limited psychological treatment, although according to Dr Youssef, the offender re-engaged her in March 2025 following his return to custody in relation to this matter.

83. Dr Youssef has seen the offender monthly by audio-visual link, completing 11 sessions to date. He has always attended the appointments and has appropriately engaged with her services. Again, she accepted that he suffered from complex PTSD, characterised by long-standing difficulties with emotional regulation and expressiveness, interpersonal relationships, self-concept and coping with distress. Dr Youssef anticipated that she would need to continue to work with him on an ongoing basis.

Moral culpability

84. The offender submits that his moral culpability is reduced both because of his traumatic background and the relationship between his mental state and the offending.

85. Recently, in Taylor v R*,* N Adams CJ at CL explained that:

“[107] Since the decision of the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (‘Muldrock’) in 2011 and the later decision of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’) in 2013, it has become a common feature of proceedings on sentence for a submission to be made that an offender’s ‘moral culpability’ for the offending is reduced.

[108] An offender’s ‘moral culpability’ for an offence refers to the offender’s moral blameworthiness for their offending: Paterson v R [2021] NSWCCA 273 at [29]. It is a separate finding to that of objective seriousness. The most common bases upon which an offender’s ‘moral culpability’ for the offending may be reduced are either by reason of a mental illness or intellectual impairment, based on the decisions in Muldrock and Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (‘De La Rosa’), or on account of an offender’s profoundly deprived childhood, based on the principles derived from Bugmy.” [11]

86. Having regard to the evidence presented on the sentencing of the offender, he has suffered from a deprived and traumatic childhood and background, such as gives rise to the Bugmy factors, [12] and suffered from a medical condition (PTSD) which was causally significant to the offending for which he is to be sentenced, meaning that the De La Rosa principles apply. [13]

87. I accept that the offender’s moral culpability (otherwise described as moral blameworthiness) is reduced on these bases. This impacts generally on the sentence which should be imposed and impacts on the weight which might be given to other sentencing factors. However, it is also important to observe that whilst reduced moral culpability is an important sentencing consideration, it is merely one factor to be considered in the synthesis of the objective and subjective circumstances of the offender.

Deterrence

88. I accept that general deterrence has a lesser role to play in the circumstances.

89. However, in my view, the sentence must still reflect the need for specific deterrence, particularly having regard to the offender’s criminal history.

Remorse

90. I also accept that the offender has demonstrated remorse, albeit he appears to have come late to that idea, having regard to his early behaviour. Again, I am not merely reliant upon what the offender might have said to a medical or other health professional. The offender gave evidence and expressed his remorse directly and specifically.

Prospects of rehabilitation

91. On behalf of the offender, it is submitted that whilst on parole he sought assistance from his caseworker regularly and complied with supervision orders, to the extent that his supervision by Community Corrections was suspended due to his progress. However, as the offender accepts, the current offending is a significant step backwards. The offender has again expressed his commitment to address the factors that lead him to offend. It is said that his long-term partner is a positive and pro-social support, as is his mother, but none of those matters convince me to be positive about his prospects of rehabilitation.

92. I have regard to the letter from his partner and his own views expressed in the witness box as to what he would like to do and achieve, but his history is very much against him. This offence was committed whilst he was on parole. Despite what must have been apparent to him in terms of the risks of carrying and using knives, that is, that it is asking for trouble, he felt the need to carry a knife and use it, even whilst walking along a public street to get takeaway food.

93. Having said that, I am unable to accept that his prospects of rehabilitation are good. His history of violent offending, his record in custody, and indeed the medical evidence on which he relies gives real concern as to his prospects of rehabilitation.

Risk of institutionalisation

94. The offender submits that it is important in imposing any sentence to have regard to the risk of institutionalisation. That is so. I do have regard to that, particularly as having regard to both the 2011 and 2016 offending, the offender has already spent a significant period of his young adult life in prison. Having said that, and although this is a factor to which I take account, it is not a factor to which I attach much weight as the sentence I impose must accord with the overall purposes of sentencing.

Special circumstances

95. The offender submits that his deprived background, exposure to violence and trauma, as well as his mental health and substance abuse problems, and his likely institutionalisation will mean that he would benefit from substantial, complex and long-term assistance on his return to the community. Further, it is said that his time in custody is made more onerous because of his mental health condition, that is PTSD, and the segregation or restricted conditions which have been imposed upon him.

96. I accept those submissions. I have regard to those matters and make a finding of special circumstances. I have reduced the statutory ratio between the head sentence and the non-parole period.

Discount for early plea

97. Further, the offender offered to plead guilty to the offence of manslaughter in the Local Court prior to committal. He is thus entitled to a 25 per cent discount on the sentence that may otherwise have been imposed.

Comparable cases

98. I have been provided with a table of other cases including sentences for manslaughter based on excessive self-defence.

99. I have had regard to these cases, but as is often said, each case depends on its own facts and circumstances and the sentencing process involves a synthesis of the objective and subjective features. Despite the number of cases included in the table, it is difficult to find a case with similar facts and circumstances as this one.

100. Many involve the use of a weapon on the part of the victim or an organised fight involving a number of people, or the offending happening during participation in other criminal activity.

101. In R v Gale, [14] the offender stabbed the victim during an altercation over an earlier incident. There was little evidence of remorse. He had a difficult background with poor prospects of rehabilitation. He was sentenced to a term of imprisonment of 12 years with a non-parole period of 8 years.

102. In R v Aljubouri*; R v YA; R v Shaker*, [15] the offender stabbed the victim after a struggle. The confrontation was initiated by the victim, and a weapon was introduced by the victim. He was sentenced to a term of imprisonment of 6 years and 6 months.

103. In R v Stanley (No 2), [16] the offender was called out of a home to fight. He ran out of a house wielding a kitchen knife and waved it in close proximity of the deceased who punched him to the head. The stabbing was reactive, spontaneous and not planned. He had a strong subjective case. The offender was sentenced to a term of imprisonment of 6 years with a non-parole period of 3 years and 6 months.

104. In R v MR, JB and CS (young persons) (No 5), [17] the offender was sentenced to a term of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 6 months after a 25 per cent discount. The offender stabbed the male victim once in the chest outside a house, believing that the victim was pulling a knife out of his pants after a physical altercation. An assessment at the lower end of objective seriousness was made. The offender carried a knife for protection after being the victim of a knife crime several years earlier. The offender was a young person with a strong subjective case.

105. The matters to which I have referred have some similarities but also some significant differences. None of the matters to which I have been referred are similar to this matter in all respects.

106. Sentences for manslaughter may vary greatly, as Spigelman CJ observed in R v Forbes:

“[133] … manslaughter is almost unique in its protean character as an offence …

[134] 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.” [18] (emphasis in original)

The sentence

107. The purposes of criminal punishment include the protection of society, denunciation, deterrence of the offender and others who might be tempted to offend, retribution and reform. No factor can be considered in isolation when determining what an appropriate sentence may be in the process of instinctive synthesis, which is the sentencing process.

108. As observed by in Veen v The Queen (No 2), [19] those purposes overlap and none can be considered in isolation when determining what is an appropriate sentence may be in a particular case. In undertaking the sentencing process, I have had regard to the objective seriousness of the offending as well as the offender’s subjective circumstances.

109. Having regard to my finding of special circumstances, the offender is entitled to a slightly longer period on parole.

110. I consider this to be serious offending. Further, the response of the offender to his perception that he needed to defend himself was significantly disproportionate to the circumstances as he perceived them.

111. As I have indicated, are a number of aggravating features. The offender has a significant criminal history which disentitles him to any leniency. This history involves violence and the use of knives. The carrying and use of knives requires strong denunciation.

112. The sentence I would have imposed prior to the 25 per cent discount, would have been 11 years. With the discount, the sentence I impose is 8 years and 3 months. As I have made a finding of special circumstances, the offender is entitled to a longer period of parole. I impose a non-parole period of 5 years and 5 months.

113. The offender returned to custody for breach of his parole on 25 September 2024. Between 25 September 2024 and 25 November 2024 (being 61 days) the offender was serving a balance of parole for earlier offences. I propose to commence this sentence on 25 November 2024.

114. I thus sentence the offender to a term of imprisonment of 8 years and 3 months years commencing on 25 November 2024 and expiring on 24 February 2033. The offender will be eligible for parole on 24 April 2030.

115. As the offender is convicted of a “serious violence 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. [20] I ask the offender’s solicitor to undertake that task on the Court’s behalf.

**********

Endnotes

Crimes Act 1900 (NSW), s 421.

Crimes Act, s 24.

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]-[28] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

R v JM (Sentence) [2024] NSWSC 1345 at [28] (Dhanji J) R v TH [2025] NSWSC 1578 at [63] (Cavanagh J); LK v R [2025] NSWCCA 143 at [53]; KL v R [2026] NSWCCA 87 at [76].

R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unrep); R v MD; R v BM; R v NA; R v JT [2005] NSWCCA 342; (2005) 56 A Crim R 372.

R v Hoerler [2004] NSWCCA 184; (2004) 147 A Crim R 520 at [40].

R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1.

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.

Newburn v R [2022] NSWCCA 139 at [39] (Leeming JA, Garling and Lonergan JJ).

[2021] NSWCCA 273 at [33] (Beech-Jones CJ at CL, with whom R A Hulme, N Adams JJ agreed).

[2026] NSWCCA 32 at [107]-[108] (N Adams CJ at CL, with whom Fagan and Boulten JJ agreed).

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.

[2020] NSWSC 808.

[2019] NSWSC 180.

[2023] NSWSC 74.

[2024] NSWSC 912.

[2005] NSWCCA 377; (2005) 160 A Crim R 1 at [133]-[134] (Spigelman CJ, with whom McClellan CJ at CL and Hall J agreed)

(1988) 164 CLR 465 at 476; [1988] HCA 14 (Mason CJ, Brennan, Dawson and Toohey JJ).

Crimes (High Risk Offenders) Act 2006 (NSW), 25C.