R v Tarrant

The offender's relationship with Raymond Roff

1. Roff was born 1 January 1962 and lived nearly all his life in Dubbo. Throughout his working life he had had manual occupations including some trade work and semi-skilled work. From about 2003 he worked casually as a maintenance man at a motel in Dubbo. This continued through to July 2013. In 2012 and 2013 he also carried out small building and home renovation and repair projects as a self-employed contractor. He had a range of skills in building work.
2. Roff's wife of 35 years, Cathy Roff, was diagnosed with cancer in May 2010. For 6 weeks in mid-2010 Cathy received treatment at the John Hunter Hospital, Newcastle. During that period the Roffs had frequent social contact with the offender and with Alois Rez and Zonia Rez. This came about because the offender and Alois Rez were then residing with their children at Charlestown. Zonia Rez also resided there. She had been at school with Roff in Dubbo, about 2 years ahead of him, in the 1970s. She had moved with her son Alois from Dubbo to the Newcastle area in the early 1990s. Roff was friendly with Zonia Rez's brother Emil, who still lived in Dubbo in 2012.
3. When the offender and Mr Rez moved with their family to 46 Alfred Street Dubbo they commenced to make internal alterations to the house. Roff assisted in this work, both physically and with advice. He visited the home at least several times per week in the second half of 2012. At times he was visiting daily and at times twice per day. Many of the visits were purely social. He showed interest in and affection for the children of the offender and Alois Rez and assisted the offender with their care. He was kind to the offender became close to her. She confided in him that she was unhappy with Alois Rez, that he and his mother belittled and criticised her and that he was lazy and demanding. She said she wished she could end the relationship with Alois Rez.
4. In about December 2012 the offender began to make very strong sexual overtures to Raymond Roff including sending him sexually explicit photographs of herself. She gave evidence in the trial of Roff that this continued through January 2013. These invitations commenced to be accepted by Roff in early 2013. The offender and Roff began a full sexual relationship in early March that year. From then on they met on most school days and sometimes twice on such days at locations around Dubbo where they engaged in sexual intercourse.
5. At Easter 2013, at the end of March, the offender wrote a long love letter addressed to Roff. She left this for him in his motorhome, then located at Burrendong Dam 70 kilometres Southeast of Dubbo. The letter clearly expressed rational and coherent thoughts concerning the relationship between the offender and Roff.
6. The letter included the following: 1. The offender regarded Roff as a person who treated her decently, in contrast to Alois Rez, and this had given her "a new meaning to life and something to live for". 2. The letter traced the emergence of the offender's love for Roff from December 2012, including her initial fear that he "would turn me down, giving me a talk about our age, that I was already with someone". 3. When Roff's behaviour had eventually been interpreted by the offender as indicating "the feelings were mutual" she was "over the moon" and knew she could confide in Roff. 4. The first occasion of sexual intercourse with Roff was referred to in fond terms but with regret on the offender's part that she had used a "morning after" contraception to terminate any possible pregnancy. 5. The letter refers to children that the offender and Roff were "going to have". It ends with a promise to be Roff's "beautiful wife and bride", adopting in part the language of a traditional wedding vow.
7. Roff replied in a letter of similar length, referring to incidents in the development of the sexual and romantic relationship between himself and the offender. His letter provided a brief outline of his own life and referred to his sense of loss at the death of his wife. Roff declared that he wanted the offender to marry him and promised to be a good husband and a good father to her children.

The plan to kill Alois Rez

1. In May 2013 the offender told Roff that she wanted Alois Rez "gone". She meant by this that she wanted him killed. On her own evidence the offender considered that from this time onwards there was a plan between herself and Roff to kill Mr Rez, although no particulars of how this was to be achieved were discussed or agreed upon until late July 2013. I am satisfied beyond reasonable doubt that the offender intended from May 2013 to have Alois Rez killed with the assistance of Roff. I cannot be satisfied that Roff in fact agreed to this from as early as May, only that the offender thought he did.
2. By some date in June 2013 the offender knew she was pregnant and believed she was carrying Roff's baby. She was having very infrequent intercourse with Alois Rez at this time, once every few weeks according to her own evidence. On about 15 July 2015 Roff gave the offender an ultimatum: if within three weeks she had not ended her relationship with Alois Rez so that the offender and Roff could walk "hand-in-hand down the street", then he, Roff, would break off his relationship with the offender.
3. On the afternoon and evening of Tuesday 23 July 2013, Roff spent some hours at the house of the offender and Mr Rez. After Roff had left to go to his own home Mr Rez accused the offender of conducting an affair with Roff and threatened to put her out of the house. He pushed and dragged her along the hallway. Following this incident she sent a message to Roff reporting what had occurred. She asked him to call the police. He did but when the police attended the offender told them there was no problem, even when they spoke to her in the absence of Mr Rez.
4. On this evening and during the next morning the offender and Alois Rez informed Roff that Mr Rez would not allow him to visit their home any more. Roff was embarrassed by the incident of 23 July 2013. When he met the offender on about Thursday 25 July he expressed anger that she had caused him to call police but then had not pressed her domestic violence complaint. He told her that she had to make a choice between Mr Rez and himself. He gave her a bag of sleeping tablets and told her to crush them and put them in Mr Rez's food. Roff instructed the offender to let him know when Mr Rez was in a deep sleep in order for him to come to the house. The offender understood that Roff would then kill Mr Rez, although this was not said in as many words.

Implementation of the plan

1. The offender waited until Sunday 28 July when Zonia Rez, who lived with the couple and their children in their house at Dubbo, departed by train for Sydney. That evening she crushed the sleeping tablets which she had received from Roff and mixed them into a portion of mashed potato which she served to Mr Rez. She kept Roff informed, by text message, as to the progressive effect of the tablets. Roff instructed her, by messages in reply, to leave rags on the bed where Mr Rez slept, to leave the front door open and to turn off the security light at the front of the house and the CCTV monitor covering the entry.
2. The offender carried out these instructions and after assuring Roff that Mr Rez had slept through the sound of a passing train she waited in the lounge room towards the rear of the house. Roff arrived and killed Mr Rez in a manner which the evidence does not reveal. He dragged the body onto the front driveway and then summoned the offender to help him lift it into the rear of his vehicle. The offender complied. I find that Roff then drove away with the body and disposed of it somewhere in the surrounding countryside. The body has not been recovered.
3. By prior arrangement between herself and Roff and in accordance with discussions between them on the night, the offender had Roff remove Alois Rez's phone and tobacco but leave behind his wallet, apparently to contribute to an appearance that he had departed unexpectedly. She hosed the deceased's blood off the driveway after Roff had driven away with the body. She cleaned up the bedroom in which Alois Rez been killed and on the next morning she purchased replacement bedding. She then went about her usual routine.
4. Over the next few days the offender and Roff resumed their relationship. They did not report Mr Rez missing. The deceased's aunt became aware of his absence from the house. She called Zonia Rez to return from Sydney and then accompanied her to Dubbo police station on Friday 2 August 2013 to report that he had disappeared.

The offender's records of interview

1. In an initial interview with police on 2 August 2013, the fifth day after the murder, the offender maintained during two and a half hours of questioning that she had no idea what had become of Mr Rez and that she could only suggest members of the Rebels motorcycle gang may have abducted and harmed him. This suggestion was something that she and Roff had agreed they would promote as an explanation for Mr Rez's disappearance. The offender represented that she was anxious about his unexplained absence.
2. A week later on 9 August 2013 the offender was again questioned by police, this time for three and a half hours. In this interview she said she had had arguments with Mr Rez during the relationship and that when they had lived at Windermere Park (on Lake Macquarie) in about December 2008 an Apprehended Violence Order had been made against him after he threw a chair at a sliding door. Otherwise she said that between 2008 and 2011 there had been no significant violence, "Just the fights, pushing and shoving. Nothing, no punching, no, nothing like that". She said Mr Rez had "kicked me out of the house" at Mayfield, a suburb of Newcastle, on Christmas Day 2010 when she was heavily pregnant.
3. With respect to the two years from mid-2011 to the date of the interview the offender said that on more than one occasion Mr Rez had put her out of their house temporarily, at times when she was pregnant, and that in those two years there had been "just emotional violence" but "no punching or hitting. We have pushed and shoved each other, yes". She said "He never punched me or hit me like, a slap. It was more like a push and shove" and "Other times he has spat in my face and called me names". She said that over the 12 months since they had moved to Dubbo she and Mr Rez had "constantly argued".
4. The offender admitted to the interrogating police on 9 August 2013 that she had commenced a relationship with Roff earlier that year but initially she claimed that she had wanted to end this, that she felt guilty and "just went with the flow" of Roff's pursuit of her. She claimed she had not known how to tell Roff that she "didn't want to do it any more". I am satisfied beyond reasonable doubt that that was untrue. Also the offender initially claimed that on the night of Mr Rez's death she had not exchanged text messages with Roff but had got up in the night, after falling asleep in the lounge room, and had been surprised to see Roff standing in the hallway at the door to the main bedroom in which Mr Rez was sleeping. She said she had inferred that Roff must have harmed Mr Rez and that she had been shocked. After this she had returned to the lounge room and waited. When she came out to the front of the house a little later she saw Mr Rez's body on the driveway covered with some of his bedding. She said she followed Roff's instructions to help lift the body into the back of his vehicle.
5. It is clear beyond reasonable doubt that this false version of events was carefully calibrated to fit what the offender believed at the time may have become known to police, in circumstances where she did not realise that her exchange of text messages with Roff on the night of Alois Rez's death was available to them. This was a competent attempt by the offender to acknowledge what she assumed the police must have known whilst denying the true extent of her own participation.
6. In the last 30 minutes of this three and a half hour interview the offender was shown in print some of the SMS messages she and Roff had exchanged on the night of Alois Rez's death. Even then, having been driven by the content of these messages to admit that she had drugged the deceased, the offender claimed she had only intended that Roff would "scare" Mr Rez. She said "I didn't want him [Roff] to hurt him. I wanted to break it off with whatever was going on with [Roff] and myself. I felt disgusted in myself. I really did".
7. Again in these answers I find beyond reasonable doubt that the offender adjusted her false statements to police in order to fit an explanation of her own actions and words, involving as little culpability as possible, to the additional material she now knew the police held. A full admission of her agreement with Roff to carry out the murder only came much later, including by her plea (first offered in the Local Court) and, in detail, by way of her evidence in the trial.

Abnormality of mind

1. The defence case for the verdict of manslaughter rather than murder was left to the jury on the basis of s 23A Crimes Act, the following subsections of which are presently relevant: "23A Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. … (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead. ... (8) In this section: underlying condition means a pre-existing mental or physiological condition, other than a condition of a transitory kind."
2. The jury's verdict means that the maximum penalty to which the offender is exposed is imprisonment for 25 years under s 24 Crimes Act. In contrast the maximum penalty for murder is imprisonment for life (s 19B). A very significant issue in sentencing Sarah Tarrant is the nature and severity of her abnormality of mind at the time of the offence and the degree of impairment to any of her faculties which resulted from that abnormality.
3. The jury's verdict necessarily involves a determination that she did at the time suffer "an abnormality of mind arising from an underlying condition". Expert psychiatric evidence was given at trial, in report form only, that the offender suffered from three specific mental disorders. The verdict does not carry with it a finding as to any one or more of these diagnoses.
4. The verdict involves a finding that at least one of the three faculties referred to in subs (1)(a) of s 23A was substantially impaired. But there is no jury decision as to which of the faculties was or were affected or to what extent. The verdict says no more with respect to the measure of impairment than that it was sufficient "to warrant liability for murder being reduced to manslaughter". Beyond that threshold, how severely her faculties were compromised must be determined by me in order to gauge the corresponding degree of reduction in culpability and the consequent impact on her sentence: R v Low (1991) 57 A Crim R 8 at 18 - 19; R v Anatky [2007] NSWSC 1047 at [35] - [36].
5. On sentence the Crown submitted that "the degree of her substantial impairment was, in clinical terms, closer to the mild to moderate than the severe end of the range". The Crown did not nominate which of the faculties might be thought to have been affected. The Crown's submission in my view overstates the degree. At trial the Crown urged the jury that the impairment, whilst substantial, was not even sufficient to engage s 23A. Neither the verdict nor the additional evidence received in the sentence proceedings would lead to a conclusion that the extent was any more than the bare minimum necessary to justify reduction of the verdict to manslaughter.

The nature of the abnormality of mind

1. The evidence of Dr Quadrio qualified by the offender and Dr Skinner qualified by the Crown was presented at trial by the tender of extracts from their written reports (Ex Q). Neither expert was cross-examined. A statement of agreed facts regarding this psychiatric evidence (Ex P) established that both doctors had read the offender's two records of interview (2 and 9 August 2013), statements of most of the Crown witnesses, the text messages exchanged between the offender and Roff before, during and after the night of Alois Rez's death, the love letters which passed between the offender and Roff and some pre-homicide medical records of the offender. The extracts from each doctor's principal report recorded the history the offender had given of her relationship with the deceased and of her childhood experiences relevant to her mental wellbeing. These histories broadly accorded with her evidence on those matters given at the trial.
2. Although the offender did not describe the relationship between herself and Alois Rez in these terms, I accept Dr Quadrio's assessment that it was a course of "physical and psychological and verbal abuse, threats of violence and both economic and social control" in which the "critical element [was] the exercise of power and control". Dr Quadrio described this as: "'a form of subordination' rather than violence; 'a pattern of intimidation, isolation and control' which exacts high levels of fear and entrapment; the violence may be 'routine, low-level threats and assaults' and the harm that is done is more often the cumulative result of ongoing 'entrapment' than of discrete assaults, 'so injury is a poor way to assess risk'".
3. I accept this description as applicable to the offender except with respect to "high levels of fear". I am not satisfied on the balance of probabilities that the offender was significantly physically afraid of Alois Rez while she lived with him, except perhaps briefly during a few of the physical altercations as described by her.
4. Dr Quadrio's analysis of the effects upon the offender of her childhood and de facto marital experiences included the following: 1. At T 61.5 - .10: "She's felt, … devalued in her original family. She felt devalued when her father … left. That she feels abandoned by him. She feels, she felt devalued by her brothers. She felt devalued at school. She felt disliked at school. She's been devalued and debased in that relationship [with Mr Rez] for years." 1. At T 69.35 - .45: the offender's chronic post-traumatic stress disorder, as diagnosed by Dr Quadrio, had "its origins in childhood and the early part of life when the personality is still forming and so those disturbances that are there during the period of development, they become part of personality development … someone who has had that trauma and abuse sustained over a lifetime, the disturbance is no longer a kind of reversible phenomenon, it becomes incorporated into the personality. So again it's a very fundamental disturbance that is quite different from the short‑term, intense disturbances." 1. At T 70.23 - .29: the offender's history conformed to a pattern "of a young girl who's been exposed to family violence had an unhappy and difficult childhood and at 14 some big strong man [Alois Rez] comes along and she sees in him a [rescuer] someone who's going to make everything right for her and look after her and protect her and off she goes. It's just such a common scenario, so very often that strong man who steps in and looks like he's going to take over and look after her for the rest of her days becomes another abuser. It's a very, very common pattern." 1. At T 71.2 - .25: the offender "is someone [whose] fundamental development was disturbed so her disturbance is at a very fundamental level of her development. ... that she has a developmental disorder which affects her in pervasive and fundamental ways."
5. This analysis led to Dr Quadrio's diagnoses of chronic post-traumatic stress disorder and chronic depressive disorder. With respect to the significance of the chronic nature of both of these disorders Dr Quadrio said (at T 69.20 - .32): "when a disorder is chronic, sustained over years, the effect of that is very debilitating so it's important to think about not just mild, moderate and severe but to think in terms of chronicity … over many years, there's a kind of wearing down of the person, wearing down of resistance so that in the long run chronicity can have a highly damaging effect. It may not be as impressive as a very severe, intense depression in the short‑term but someone who has a very severe, intense depression who has not been depressed in the long‑term may have very good resilience and once they're over their severity they may be able to bounce back and get back to normal. Whereas in a chronic condition you get a gradual wearing down so the basic level of functioning of the person is undermined and I think that's really important because Ms Tarrant has been depressed most of her life really."
6. I accept Dr Quadrio's evidence as extracted in the previous two paragraphs. With respect to depression her view is supported by clinical records of depressive symptoms dating from occasions when the offender attended at hospitals and clinics intermittently before July 2013. The extracts of the psychiatrists' reports tendered at trial did not attempt to reconcile the diagnosis of depression with the evidence of the offender's love letters to Roff and of her intimate text messages to him in early July. That evidence and the offender's account of her sexual and romantic relationship with Roff and their plans for the future suggested a degree of optimism and enthusiasm seemingly inconsistent with depression. However Dr Skinner also diagnosed depression. When called in the sentence hearing she was able to reconcile this evidence to the diagnosis in a manner which satisfies me to accept the two psychiatrists' opinions on this disorder.
7. At T 28.11 - .20 Dr Skinner explained that a record of the offender's answers to a questionnaire regarding symptoms of depression, completed only a week before the death of Alois Rez, showed "quite a high rating for the general symptom complex of depression". Further, Dr Skinner and Dr Quadrio both gave the opinion in their oral evidence that fluctuations in the severity of depression and periods of optimism may occur in a chronic depressive condition. Dr Skinner noted the possibility that the offender's love letter and texts to Roff may both have contained deliberate exaggeration of her capacity for positive feelings, in order to maintain Roff's interest in her.
8. Dr Skinner diagnosed a personality disorder with dependent traits in addition to the depressive disorder. This she explained as follows: "Personality disorder refers to an enduring pattern of inner experience and behaviour that differs markedly from that expected in the individual's culture, is pervasive and inflexible, is stable over time and leads to distress and impairment. Ms Tarrant comes from a background of emotional deprivation and abuse and has not developed the independence, autonomy and coping skills that would have been expected in a woman of her age."
9. This description has much in common with the constituents, symptoms and origins of the chronic post-traumatic stress disorder which Dr Quadrio diagnosed as a second condition. I accept Dr Quadrio's opinion that the difference between these two diagnoses is not significant.
10. In another passage of one of her reports tendered at trial Dr Skinner elaborated her second diagnosis of personality disorder with dependent traits as follows: "A person with dependent personality features has difficulty in making decisions and seeks advice from other people to an excessive degree. The person feels incapable of taking on adult responsibility and seeks others who will assume this responsibility for them. The person will tolerate unpleasant events and carry out difficult tasks rather than lose the support of others. The person has difficulty doing things independently because of a lack of self-confidence and is preoccupied with fears of being alone or being unable to care for himself or herself or to carry out tasks of adult responsibility. The person will urgently seek another relationship as a source of emotional support when a close relationship ends. Ms Tarrant felt trapped in the situation in her relationship with Mr Rez but felt powerless to leave the relationship. Realistically it would have been extremely difficult for her to leave, as she was in a situation with the responsibility of caring for young children; she had no money and no emotional or practical support from family or friends."
11. From the descriptions of causes and symptoms given by the psychiatrists in respect of each of the conditions they have diagnosed, I find that none of them inherently and necessarily involved substantial impairment of any of the three faculties specified in s 23A(1)(a). The diagnoses here may be contrasted with, for example, schizophrenia, in which hallucinations, delusions, thought disorder and profound agitation would be expected as aspects of the psychosis characterising the condition. Psychiatric states of mind exhibited in schizophrenics may engage s 23A whilst falling short of the requirements of a mental illness defence. As the doctors do not suggest that the abnormalities of the offender's mind were of this nature the Court must look further into their opinions to understand what impairments of the relevant faculties they consider the offender to have been affected by at the time of the offence.

Nature and degree of impairment of faculties - Dr Skinner

1. The extracts of reports tendered at the trial stated the opinion of each psychiatrist regarding the impairing effect of the offender's abnormalities of mind simply in terms of s 23A Crimes Act. That is, disjunctively, that "the capacity to understand events or to judge whether her actions were right or wrong or to control herself" [emphasis added] were substantially impaired. The opinion so expressed by each doctor was of uncertain meaning but no objection was taken to the tender of the opinions in this form. The Crown accepted at the trial that these opinions could be understood by the jury as meaning all three faculties were substantially impaired: T 1004 - 1006.
2. In the sentence hearing Doctor Skinner clarified her view, first, with respect to "capacity to understand events". She did not consider this faculty impaired at all.
3. Secondly, with respect to the offender's capacity "to judge whether her actions were right or wrong" Dr Skinner thought the offender "had some moral understanding with respect to the events that took place in July but … had a reduced capacity for moral understanding compared to … the average person" (T 22.14). I find that there were at least four instances of the offender making clear and conventional moral judgments at relevant times in 2013. These are variously to be found in her love letter to Roff of March 2013 (where she expressed remorse about having possibly terminated a pregnancy resulting from her first sexual intercourse with Roff), in the text messages of July 2013 (concerning her affair with a man so much older than herself and concerning Roff's intention to honour his agreement with Alois Rez to stay away from the home after 23 July 2013) and in the records of interview (where the offender's concealment of the truth from police displayed awareness of the wrong involved in the killing of Alois Rez).
4. When Dr Skinner was asked about these instances of moral judgment she said at T 25.46 - .49: "I think she was capable of making moral judgments but at the same time she was conflicted about her relationship with Mr Roff and felt a need to continue in the relationship with Mr Roff over‑riding those moral feelings that she had."
5. This does not describe an impaired capacity to make a moral judgment but rather some strong feeling of desire or need for Roff which caused her to pursue a means of continuing her relationship with him - namely, killing Alois Rez - notwithstanding her appreciation of the wrongfulness of that course. Dr Skinner agreed that the offender's initial untruths in the records of interview and her gradual change of position under questioning showed that she understood the wrong involved in the killing. Those records of interview took place within 5 to 12 days after the homicide. There was nothing in the psychiatric or other evidence to suggest that the impairing effect of whatever abnormality of mind afflicted the offender had been more severe on 29 July than at the dates of these interviews so that she might be taken to have had less moral appreciation when she was assisting in the homicide than when she was questioned.
6. Thirdly, with respect to capacity to control herself Dr Skinner gave this answer at T 26.25 - .28: "she, in my opinion, lacked the capacity to control herself in the situation where she felt that she wanted to get out of the situation with Mr Rez and yet was not capable of doing that independently."
7. I find beyond reasonable doubt that the text messages of the night Mr Rez was killed show a determination on the offender's part to see the plan through. They include expressions of her strong desire to achieve the objective of Mr Rez's death:

• "Still waiting for it to drop off. … Wish it would hurry up and work".
• "Nothing is getting in the way of tonight".
• "He has just gone to the toilet stumbling. I'm hoping he drops off soon. I'm sick of waiting".
• "I need this like you need this".
• "i thought he would have gone to sleep but (sic) now. Do you want me to just go into the lounge room with her now and you come now? I need those (sic) to happen i can't wait any longer?".

1. I find, to the same standard of proof, that the manner of the offender carrying out Roff's instructions on the night, seeking clarification of them by text messages and generally ensuring the smooth working of the plan shows her focused dedication to the task. Dr Skinner agreed these texts showed the offender had not lost her capacity "to act with some resolution and perseverance" (T 26.35). The doctor said at T 26.50 - 28.9: "she lacked some capacity to control her - to control and plan. She did not lose capacity to control her actions on the night of the killing as she was able to carry out actions but in my opinion she had a reduced capacity for moral judgment and planning because of her personality disorder, because of her own mindset about her situation which is different to an appreciation that another person might have had in that situation. Q. You are talking about a reduced capacity for control and perhaps to apply moral judgment over a longer timeframe? A. Over a longer timeframe in the planning of the actual events that occurred she was able to control her actions but as you said not in the same way a person who is impulsive would lose control. Q. What, a reduced capacity to withdraw from a bizarre plan? A. Yes, withdraw from a situation."
2. The death of Alois Rez was an objective the offender held for at least two months, from May 2013. Dr Skinner's concept of impairment of capacity for self-control is far from the type of spontaneous, impulsive, unrestrained action that one would normally associate with these words. Not only was the intention to kill fixed upon months in advance, it was then planned in detail with a co-offender and carried out a few days later in close coordination with him. Notwithstanding those considerations, Dr Skinner said that her principal finding of impairment "relates to the ability to control her actions" (T 33.48).
3. On that basis I find that Dr Skinner's evidence supports no more than a minimal degree of impairment overall, relevantly to the faculties or capacities with which s 23A is concerned. She said herself that the offender's impairment of self-control was "at the lower end of the spectrum" (T 36.17). By the word "spectrum" she did not purport to apply technical medical terminology, merely the idea that there may be degrees of severity, along a continuum (T 40.36). Asked what would be at the top end of the spectrum, she said (at T 37.2 - .7): "A person who is not able to control their conduct and behaviour at that time in some way perhaps acting impulsively, acting more impulsively, not able to control their conduct, particularly as this occurred over a period of time and Ms Tarrant was able to carry out the conduct and behaviours in accordance with a kind of plan to carry that through over a period of time I felt in that respect she was able to control her conduct in that way."
4. The impairment of self-control which Dr Skinner postulates is an inability of the offender to change her mind about a long held desire to have her partner killed or to desist from implementing the detailed plan which she adopted a few days in advance of the homicide. If loss of control of this nature was experienced by the offender in any significant degree she would have been able to give evidence of it. It is not as if she claims to have no recall of her actions or thoughts during the middle months of 2013 so that only a psychiatrist could describe how her mind was working as a matter of expert opinion. The offender has demonstrated full recall of her conduct from May through to the killing. She has not said she felt unable to restrain herself from holding the intent and carrying through the plan. The impairment of self-control attributed by Dr Skinner must be rated as minimal, amounting to a lack of self restraint with respect to pursuing her own objectives at the expense of another's life.

Nature and degree of impairment of faculties - Dr Quadrio

1. Dr Quadrio rejected the concept of evaluating the offender's impairment, in any faculty, by reference to a spectrum (T 53.50 - 54.5). She thought degrees of impairment should rather be thought of in the categories of mild, moderate and severe. With due respect, I do not see any real difference.
2. The doctor considered, first, that the offender's capacity to understand events was moderately impaired (T 55.10). Based upon her experience of the effects of complex post-traumatic stress disorders generally, Dr Quadrio thought the offender would have become progressively demoralised and undermined during the course of her relationship with Alois Rez. She would have lost faith in her own capacities. "[W]hat starts off as a reality power differential gets steadily magnified in the person's mind … and so their perception of the situation is quite distorted. … a person in that situation who comes to see themselves as having, as being helpless, as having no options and as being - really they feel held captive by the [abuser]" (T 56.9 - .21)."
3. To similar effect Dr Quadrio said at T 57.5 - .12: "And we know that the most dangerous time for a victim is when she leaves the relationship. That that's the most likely time that she is most likely to come to severe harm. There is a reality basis to this, but again it becomes magnified as the years go by to a sense there is absolutely no possibility of escape. Q. So, a sense of being trapped? A. Yes. And entrapment is something that is described as being the central … feature of complex post-traumatic stress disorder."
4. The moderate impairment of understanding of events which Dr Quadrio has identified in these passages did not concern the offender's understanding of what she was saying to Roff in May when she told him she wanted Alois Rez "gone". It was not a lack of understanding about the specific plan she and Roff made on 25 July 2013 or about what she was doing on the night of 28 July 2013 when she served the deceased his meal and later carried out the rest of her part in the scheme to eliminate him. Rather the doctor describes a moderately impaired understanding of how much power Alois Rez had over her and of whether she was really trapped in their unhappy relationship or had means of leaving him. I accept Dr Quadrio's evidence about her sense of being trapped in the relationship but I consider that this was a minimal impairment from the point of view of assessing culpability. In short, the offender well understood, from her first initiation of the idea of killing Alois Rez, what this meant. When she planned the detail with Rolf she fully understood its details and objective. That is clear from the way she played her part on the night and from the understanding she showed when giving evidence. Again, she has not said that she did not know what she and Roff were planning and then doing. Her only misunderstanding was that she thought she needed to do it in order to achieve what she wanted. Namely, to rid herself of Mr Rez, to retain custody of her children and to be with Roff.
5. Secondly, with respect to her capacity to judge whether her actions were right or wrong, Dr Quadrio considered the offender had been exposed to long term wrongful treatment by Alois Rez which he and his mother had adopted as normal. The doctor understood that drug dealing and dishonesty had been household activities throughout the relationship. Doctor Quadrio concluded that exposure to all of this from the age of 15 had normalised immoral behaviour for the offender (T 58 - 59). She concluded that the offender's "morality is very underdeveloped" (T 60.16).
6. Dr Quadrio dismissed the occasions of the offender having made moral judgments in her love letter and text messages to Roff. She thought these showed mere embarrassment such as little children would feel: "I see that as nothing at a level of moral development that we expect of an adult. Adults have a much more refined morality than that, but she responded in very primitive ways really" (T 60.29 - .32). Dr Quadrio said the offender was "certainly capable of some black and white concepts. Whereas we expect an adult to draw many shades of grey with adult thinking" (T 60.48).
7. At T 61.49 - 62.14 Dr Quadrio gave these answers: "Q. You're not suggesting, are you, she couldn't make a judgment to kill him was wrong morally? A. I'm saying that it was - I think she could see that this was wrong in a very simple way, but not, not at all in the, she wasn't capable of the kind of complex thinking that we think, and she would do all that she could muster to protect a baby but not protect her husband from death. I don't think there's a contradiction there at all. Q. Put aside the contradiction, something counsel raised straight out, the concrete organising with Raymond Roff to kill Mr Rez. You don't suggest that she couldn't see that that was wrong? A. If, if she were capable of considered thought, yes. She could see that is wrong, but doesn't see that as an option. She sees there was no way of escape from this situation and that she's really, really doomed to stay in this situation otherwise. So, it's a matter of the entrapment and feeling of no escape."
8. Taking this evidence at its highest the offender's impairment with respect to moral judgment lay in a lack of refinement and a poor ability to deal with shades of grey on moral issues. Again this is a minimal deficit for the purpose of assessing her culpability for the manslaughter of Alois Rez. The moral judgment relevant to her actions in that regard was the simple black and white understanding that homicide was wrong. I find beyond reasonable doubt that the offender had that understanding. The psychiatrists do not dispute this. Dr Quadrio said at T 62.1: "I think she could see that this was wrong in a very simple way". The concept of the wrong involved in killing another human being in a domestic setting would be seen by anyone "in a very simple way" because it is very simple.
9. What Dr Quadrio describes in her last answer quoted at [70] is merely Sarah Tarrant's mistaken perception about what action was necessary to achieve what she wanted, being Roff and the children without Mr Rez. It is not an inability to judge whether the action she thought necessary, homicide, would be right or wrong.
10. Thirdly, as to impairment of the capacity of the offender to control herself at the time of the offence, Dr Quadrio's opinion on this was similar to Dr Skinner's. She accepted that the offender was able to control herself "in all kinds of ways on a daily basis in terms of dealing, functioning" (T 63.46) and that she had "some capacity" to control herself with respect to seeing through the plan to kill Alois Rez and cooperating with Roff in relation to that (T 64.10). But Dr Quadrio gave the opinion that the offender was impaired in her capacity to control her response to Roff's interest in her. The doctor said at T 64.22 - .27: "But if we understand the kind of disturbances that goes on in somebody who has the kind of … mental development that she has had … having someone shown an interest in her, and even express desire for her - or desire for her as to someone who has little sense of personal worth and so little sense of value - it's an extremely exciting, almost an intoxicating, experience."
11. At T 66.40 - .47 and 67.1 Dr Quadrio described this impairment of self-control resulting from "intoxication" with Roff's interest in her as significant: "Well, could I say, it's more like someone with so little sense of autonomy and direction, and identity, whose in a situation where there's this compelling … force that's entered her life, of something that offers an escape and, and validation of her, of her worth. It's like an intoxicating experience really. Um, maybe it's easy to think about, you know, if someone's intoxicated: How much control do they have? It's, she's, I think she's in an intoxicating experience where she's not controlling herself in the way that she would normally control, what control she has, would normally exercise control."
12. As with Dr Skinner, Dr Quadrio's concept of the impairment of the offender's self-control does not involve any element of spontaneous or impulsive behaviour over a short time frame. It is a notion of impaired ability to control a strong desire, felt over a period of months, for a personal objective. As Dr Quadrio would have it the offender lacked self-control in the sense that she was so encouraged by Roff's attentions and so desirous of securing a relationship with him that she could not resist undertaking whatever action she perceived to be necessary to achieve it. Again from the point of view of its bearing upon culpability, this is a minimal degree of impairment.

Objective seriousness of the manslaughter

1. Assessment of the objective seriousness of this offence requires reconciliation of two elements. First, the jury's finding that there was substantial impairment of the relevant faculties, sufficient to warrant reduction of culpability to manslaughter. Secondly, the fact of the offender's premeditation and determined pursuit of the death of the victim with the motive of enabling her to develop another relationship.
2. I find beyond reasonable doubt that the idea of killing Alois Rez originated with Sarah Tarrant in May 2013. I am not satisfied that the offender was in constant or frequent physical fear of Alois Rez in 2013. I find beyond reasonable doubt that in July of that year she did not fear for her safety at his hands whilst she remained living with him. I accept on the balance of probabilities that she feared he might harm her and/or take children from her if she should leave him.
3. Unlike many other offenders who have invoked s 23A, Sarah Tarrant did not react spontaneously out of fear of assault, or in retaliation, after a history of persistent violent abuse. Whilst the mistreatment by way of insult, temper and occasional assaults was appalling and degrading this was not a relationship by reference to which one could find a lethal response explicable. The offender's own account of her reason for killing her partner reflects this: "I just wanted him to stop being nasty to me. He was so mean and I wanted it to stop." (T 824.4).
4. For the reasons given by Dr Skinner (quoted at [49]) Sarah Tarrant would have faced financial and organisational difficulties and unpleasantness if she had left him. This is a common experience of people terminating unhappy relationships. I accept on the balance of probabilities that she saw the potential difficulties and conflict as being greater than they were really likely to be and that this may be attributed to her personality disorder. Dr Quadrio supported this view ([65] and [66]).
5. I am not persuaded that the offender believed there was a realistic possibility that Alois Rez would kill her if she should leave and take the children. She sought in her evidence to make this belief appear genuine by referring to the connection of Mr Rez and his mother with the Rebels. In other parts of her evidence she portrayed the Rebels as being in conflict with Alois Rez, not being his allies who might potentially cause harm to her. I find that she has invoked the spectre of the Rebels to try to give credence to her claimed fears, much as she used their background presence in Alois Rez's life when trying to persuade the police that he must have been abducted by them.

Statutory and case law considerations

1. It would not be appropriate to treat as an aggravating circumstance of this crime either of the matters referred to in pars (b) and (g) of s 21A(2) Crimes (Sentencing Proceedure) Act 1999 (NSW). That is, the use of violence and the infliction of substantial harm. Those features were inherent in the offence of manslaughter and to treat them as aggravating would be to double count.
2. The manslaughter in this case involved the use of a stupefying drug (par (cb) of s 21A(2)), it was committed in company in the sense that Alois Rez was killed by Roff acting in concert with the offender whilst she was present in the house (par (e)), the victim was killed in his own home (par (eb)) and the offence was part of a planned criminal activity (par (n)). These factors are aspects of the objective seriousness of the offence to which I attach significance.
3. With respect to the statutory mitigating factors in s 21A(3), so far as relevant, the offender is entitled to the benefit of the absence of any prior convictions (par (e)), her plea of guilty (par (k)) and her cooperation with the Crown in giving evidence against Roff (par (m)). The plea of guilty of manslaughter was offered before committal then first entered upon arraignment in this Court and adhered to at trial. I consider the offender is entitled by virtue of her plea, to a discount of 25% on whatever sentence would otherwise be appropriate. The Crown concedes this. The trial had to proceed only because the Crown did not accept the plea which the jury ultimately vindicated by their verdict. A full discount is appropriate in such cases: Regina v Oinonen [1999] NSWCCA 310 at [15]; Villalon v R [2015] NSWCCA 229. This is not to suggest that the Crown is open to criticism for having rejected the plea and required that a jury decide the issues under s 23A.
4. I treat the offender's early plea of guilty as some demonstration of remorse. She has in addition expressly stated her regret for the crime and a letter she wrote to Roff urging him to reveal where he had disposed of Alois Rez's body, to facilitate closure for the deceased's living relatives, is confirmation of the genuineness of her expressions of remorse.
5. In evaluating the offender's assistance to the Crown I have had regard to the considerations listed in s 23(2) Crimes (Sentencing Proceedure) Act. The factor limiting the discount which may be allowed on account of assistance in this case is the degree of its utility. The Crown case against Roff was overwhelming without the offender's evidence. The documentary evidence of Roff's passionate affair with the offender was proof of a powerful motive. His text messages on the night of the killing were explicit as to his involvement. There was DNA evidence to match blood smears in the back of his vehicle to Alois Rez. His lies to police the early stages of their investigations, particularly concerning his relationship with the offender, were strong indicia of guilt.
6. It is also relevant that by giving evidence in Roff's trial, which followed her own, the offender was doing no more than repeating the testimony which she gave in her own defence in order to advance the case of abnormality of mind. She would have been compellable in Roff's trial and would in any event have found herself committed to giving evidence to the same effect as what she said in her own defence, which inculpated Roff. With respect to the consideration in subpar (g) of s 23(2), I find no basis in the evidence for concluding that the offender's experience in custody will be any harsher by reason of her having testified against Roff.
7. I accept that the offender gave truthful evidence in Roff's trial and that she offered to do so in good time. Her narrative assisted presentation of the Crown case by providing a framework to complement the strong circumstantial evidence. I will allow a combined discount for the offender's plea of guilty and for her assistance to the Crown of 33%.
8. The offender's mental problems, troubled childhood and abusive de facto marriage (abusive primarily in an emotional and psychological sense as discussed above) are not matters which warrant additional mitigation of sentence in this case upon the principle stated in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177] - [178] and Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [43] - [44]. Those background circumstances have been taken into account by way of the jury's evident acceptance of the defence case that these family and marital circumstances led to an abnormality of mind. The background considerations have substantially merged in the verdict and the offender has the benefit of leniency on account of them as a result of the maximum penalty which she faces being reduced to 25 years: R v Anatky at [43]; Catley v R [2014] NSWCCA 249.
9. Because I find that the offender's impairment of faculties as a result of abnormality of mind was no more than barely sufficient to satisfy the jury that the verdict should be reduced to manslaughter, I consider it appropriate to fix her sentence with some regard to the need for general deterrence.
10. The offender was 24 years old when the offence was committed and is 27 years old at the date of sentence. She is entitled to a degree of leniency as a relatively young person being imprisoned for the first time and having good prospects of rehabilitation, as I assess them. I take into account that the offender's tendency to depression will make imprisonment additionally burdensome for her. It appears to me highly unlikely she would re-offend. Her involvement in the killing of Alois Rez was born of circumstances not likely to be repeated. Having entered the unequal relationship at 15 years of age her social development seems to have been arrested. Her increasing years from this point, alone, will favour rehabilitation. Specific deterrence and protection of the community (pars (b) and (c) of s 3A Crimes (Sentencing Procedure) Act) are not considerations of great importance in this case. Making the offender accountable for her crime and denouncing it (pars (a), (e), (f) and (g)) are the sentencing objectives of most importance.
11. I take into account that as a result of her imprisonment for over 5 months immediately following her arrest and for a further 4 months after bail was revoked upon return of the verdict up to the date of sentence, she has been separated from her five children - four of them to Alois Rez (now aged ,10, 8, 5 and 4) and one to Roff (now aged 2 years). The sentence I am to impose will be served by her with the knowledge that her children will grow up without her. I take that into account as a factor requiring mitigation of the sentence and non-parole period.
12. Victim impact statements of Zonia Rez, the deceased's mother, Arthur Smart, his brother, and Anne Smart, his sister, were read at the sentence hearing pursuant to s 28 Crimes (Sentencing Procedure) Act. The statements attest to positive aspects of the deceased's character and his close family bonds. The loss inflicted upon these family members by the killing of Alois Rez is starkly brought out by their impact statements. The family members' grief is exacerbated by the fact that they are unable to bury the body of the deceased, an ongoing situation which the offender cannot now rectify, despite her entreaties to Roff, but which has come about through her having left to Roff the disposal of the body. A further victim impact statement was read by the deceased's aunt to describe the effect on the four young children of being deprived of their father.

Relationship between non-parole period and balance of term

1. For the purposes of s 44(1) Crimes (Sentencing Procedure) Act I do not find any special circumstances which would require that the balance of term of the offender's sentence should exceed one third of the non-parole period which I intend to fix. The uniqueness of the circumstances which led to a commission of this crime, the absence of any prior criminal record, the improbability of re-offending and the expectation that with increasing years the offender will mature make it unnecessary to provide for an extended period of parole under which she could be supervised by Community Corrections.

Consistency with sentences in comparable cases

1. Having formed a view of the appropriate sentence upon the considerations mentioned in these remarks, I have taken note of sentences passed in comparable cases in order to be satisfied that my decision would fulfil the objective of consistency. Only cases involving the operation of s 23A in its current and antecedent forms are potentially relevant. Even within that subgroup it is necessary to make allowance for differences from the present case in any material respect: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 [28] - [29]. The sentencing decisions cited to me by counsel bear out the frequently stated judicial recognition that a wide variety of actions may constitute manslaughter and that moral blameworthiness varies greatly from case to case: R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep) at 4.
2. I have considered in particular the following cases which have in common with Sarah Tarrant's case the features of a relatively low order of mental impairment coupled with a degree of premeditation: R v Troja (Court of Criminal Appeal (NSW), Kirby P, Grove and Newman JJ, 16 July 1991, unrep); R v Cooper (Supreme Court (NSW), Newman J, 16 May 1997, unrep), (on appeal: R v Cooper (Court of Criminal Appeal (NSW), Gleeson CJ, Ireland and Bruce JJ, 24 February 1998, unrep)); R v Hevesi-Nagi [2009] NSWSC 755 (reasons for verdict following a judge alone trial) and R v Hevesi-Nagi [2009] NSWSC 956 (sentence remarks); R v Chen [2012] NSWSC 1000
3. A large number of cases cited by the Crown and by defence counsel involved an imminent physical threat to the offender, compounded by long term physical and emotional abuse by the deceased, which resulted in a spontaneous killing. Although abnormality of mind was present they mostly concerned significant temporary loss of control in the face of yet another provocation or attack. The premeditation exhibited by Sarah Tarrant was absent from all of the cases in this class. Those distinguishing features make such cases insufficiently comparable to the present case for them to be factored in to a consideration of consistency.

Sentence

1. The offender has been in custody for a total of 288 days, being part of the period between her arrest and today's date. To allow the time served to count the sentence I will impose is to commence on 5 November 2015.
2. The sentence is as follows: 1. For the manslaughter of Alois Rez at Dubbo on 29 July 2013 Sarah Renea Tarrant is sentenced to imprisonment for a non-parole period of 8 years to commence on 5 November 2015 and to expire on 4 November 2023 and a balance of term of 2 years and 8 months to commence on 5 November 2023 and to expire on 4 July 2026. 2. The offender will be eligible for release on parole at the expiry of the non-parole period. 3. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) the offender is notified that the provisions of the Act apply to her and to the offending the subject of these proceedings.

Amendments 22 August 2016 - [4] - offender's date of birth anonymised. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 August 2016