R v TOYER

Facts

1. The facts are before the Court by way of a set of agreed facts. After the Crown indicated that there was an objection to parts of the report of Mr Borenstein, psychologist, after a brief adjournment the offender gave evidence.
2. For the purpose of proceeding to sentence I find the following facts beyond reasonable doubt.
3. The deceased was a 25 year old male Filipina national who was in Australia on a Tourist Visa. The deceased preferred to be known as "Mhelody" and identified as a transgender person. The facts recite that the deceased was born male and had male genitalia. However, the Crown in written submissions (MFI 1 on sentence) indicates that the deceased was known as a female. Accordingly, this is the manner in which I will refer to the deceased.
4. The offender at the time of the offence was a 33 year old male residing in Tarcutta Street, Wagga Wagga. He was a member of the Royal Australian Air Force. He has since been administratively terminated from the RAAF because of this matter. The offender and deceased met in early September 2019 via an online dating application.
5. The incident that led to the death of the deceased occurred on the morning of Saturday 21 September 2019 but the deceased died at 10.20am the following day.
6. Paragraph 7 of the facts sets out a number of matters drawn from the record of interview between the offender and the police. The offender had been in a relationship with the deceased for about three weeks. They commenced communicating on Grindr and thereafter communicated via WhatsApp.
7. On Friday 20 September 2019 the offender became aware that the deceased was using Grindr. Grindr is apparently a social networking "app" for gay, bi and transgender persons. An argument between Mhelody and the offender ensued. The argument resulted in the offender telling the deceased to leave and placing the deceased's belongings outside the unit. The offender thereafter went to the Victoria Hotel where he drank some alcohol and played the poker machines returning to the unit at about 5pm. The deceased was waiting at the unit for the offender to arrive. The offender felt sorry for the deceased and agreed that the deceased could move back into the unit.
8. At about 7.30pm the offender and the deceased attended the Farmer's Home hotel where they both consumed alcohol before returning to the unit at about 9pm after which they both consumed alcohol at the home. They retired to bed for the night. The offender described the deceased as being cognitive, in good health and communicating freely.
9. Both the offender and the deceased fell asleep waking about 7am on Saturday 21 September 2019. On waking the offender cuddled the deceased adopting a spooning position behind the deceased and inserted his penis into the deceased's anus. The offender positioned his arm over the deceased's body before placing his right hand on the deceased's throat choking the deceased. The offender told police that this was a common practice between the two of them. The offender conceded to police that the deceased had never requested to be choked however was never asked to cease the practice. The deceased would tap the offender's arm if she was uncomfortable with the act. On this occasion the deceased did not tap the offender's arm.
10. As a result of the pressure applied by the offender to the deceased's throat the deceased lapsed into an unconscious state. It is not known how long the deceased was unconscious prior to the offender becoming aware of the deceased's condition. The offender identified the deceased was unresponsive and ceased choking the deceased. The offender commenced CPR and called triple-0.
11. Police and ambulance attended about 8am. Medical assistance was rendered to the deceased in the offender's presence resulting in the deceased regaining a pulse. The deceased was intubated however was drawing breath by passing 2 to 4 breaths per minute. Upon arrival at Wagga Wagga Base Hospital the deceased was placed into an induced coma.
12. On Sunday 22 September the deceased's health deteriorated and went into cardiac arrest with life being pronounced extinct at 10.20am.
13. The issue of the practice of engaging in choking while having sexual intercourse was the subject of evidence from the offender. I will deal with other aspects of the offender's evidence later in these reasons. The offender maintained that Mhelody (deceased) instigated the act and she took his hand and placed it around her neck the first time they had sex. He had known her for a period of about 3 weeks. Choking was something they engaged in when having sex. They had not discussed it nor was there anything said between them about what would occur if she wanted the offender to stop. He said she would tap on his arm if she wanted him to stop. He agreed that there were risks involved in the conduct but went on to say that he could not imagine that something like this could happen. He agreed that he could not see Melhody when they were having sex and agreed he relied on the signal of tapping on the arm if she was in distress. He agreed that there were no oral discussions on the boundaries of the practice of choking. When it was put to him towards the end of cross-examination that it would have been obvious to him that it was dangerous he replied that he did not think that anything would go wrong.
14. Considering the evidence of the offender and the agreed facts I am satisfied on balance that the deceased not only consented to the act of choking but actually instigated it on the first occasion on which they had sex. The act occurred in the course of a relationship that had existed for three weeks. Although there was no discussion as to the boundaries there was an understanding that the deceased would tap the offender's arm if she was distressed or wanted him to stop the choking. Clearly the offender did all that he could immediately upon realising that Mhelody was in a state of distress by applying CPR and calling triple-0.
15. The observation of the Court of Criminal Appeal in R v MD, BM, NA, JT (2005) 156 A Crim R 372, [2005] NSWCCA 342 at [40] is apposite to this case, namely: "…it must be clearly recognised that the events of the relevant night were a very significant tragedy". Assessment
16. Mr Dennis SC submitted that the sentence to be ultimately imposed would depend upon the assessment of seriousness of the offending. The Crown maintains that the matter is slightly below mid-range whereas Mr Dennis SC on behalf of the offender submitted that the matter was at the lowest end of the range of seriousness for manslaughter. Indeed, Mr Dennis' primary submission is that the matter does not cross the "threshold" in s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
17. I now extract part of my remarks on sentence in the matter of R v Cahill & Byrne [2020] NSWDC 224 at [49] to which Mr Dennis SC referred in his written submissions (MFI 2 on sentence) where I referred to R v Tristan Lee [2019] NSWDC 59 at [21]-[26]: "[21] It will be necessary for me to make an assessment of the seriousness of the matter. Gleeson CJ (Grove & Ireland JJ agreeing) said in R v Blacklidge unrep NSWCCA 12 December 1994: 'It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.' [22] However, the Chief Justice went on to say: 'At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. (R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.)' [23] In the decision of R v MD, BM, NA & JT (2005) 156 A Crim R 372; [2005] NSWCCA 342 the court (Spigelman CJ, Simpson J (as her Honour then was) and Howie J) said at [61]: 'The felonious taking of human life has always been regarded by the law as a most serious crime. It could never be otherwise for the protection of human life must be a fundamental objective of any criminal law system in a civilised society R v Edwards (1996) 90 A Crim R 510.' [24] Spigelman CJ (Hulme & Adams JJ agreeing) said in R v Hoerler (2004) 147 A Crim R 520; [2004] NSWCCA 184, which like Blacklidge was also a Crown appeal said at [44]: '…When sentencing for the offence of manslaughter, a court must always have regard to the full context in which death was caused. That includes consideration of the extent of violence and the risk of death or serious injury which accompany it. It also includes consideration of any matter impinging on the moral culpability of the offender where there was no intention to inflict such injury, which can vary significantly. Where there was such an intention, but murder was reduced to manslaughter by provocation or mental impairment, the degree of provocation or of impairment, also bearing on moral culpability, can also vary significantly.' [25] In the course of submissions the Crown referred to the decision of R v Loveridge [2014] NSWCCA 120 (co-incidentally another Crown appeal) where the court (Bathurst CJ, Johnson & Hulme JJ) said at [229]: 'When sentencing for manslaughter, a court must always have regard to the full context in which death was caused: R v Hoerler at 531 [44]. The surrounding circumstances may bear upon the objective gravity of the offence and the moral culpability of the offender: R v Hoerler at 531 [44]; R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].' [26] Going to another matter of general principle, Mr King in his very helpful and comprehensive written submissions refers to R v MD, BM, NA & JT. The Court said at [65]: 'In many cases where an offender is convicted of manslaughter there will be exculpatory matters and personal circumstances that can lead the court to significantly ameliorate the sentence which might otherwise be imposed. However, as this Court pointed out in R v Troja (unreported, CCA 16 July 1991) it is important for the court to ensure that the subjective circumstances of an individual offender do not divert the court from imposing a sentence which adequately reflects the part which the law must play in upholding the protection of human life and in punishing those who take it.'"
18. Further to those authorities extracted by me in R v Cahill & Byrne, Rothman J in R v HA [2008] NSWSC 1368 at [29]-[31] said: "The offence of manslaughter is one for which the maximum available penalty is one of imprisonment for 25 years. The offence involves the felonious taking of human life, and, for that reason, it has been recognised as a most serious crime. Hill v R (1981) 3 A Crim R 397 at 402, R v Woodland [2001] NSWSC 416, per Wood CJ at CL, approved in R v Hoerler [2004] NSWCCA 184 at paragraph 18. [30] The value the community places upon the preservation of human life is reflected by the need to have conduct involved in its taking denounced by a sentence appropriate to the circumstance of the case. R v McDonald (Court of Criminal Appeal, 12 December 1995, unreported), Woodland supra, Hoerler supra. [31] In R v Edwards (1996) 90 A Crim R 510, Gleeson CJ (with whom James and Ireland JJ concurred) quoted with approval the following words from an earlier decision of the Court of Criminal Appeal in Macdonald, supra: 'In a case such as the present, it is important to bear in mind the denunciatory role of sentencing. Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been regarded by the law as a most serious crime. The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectation of that system.'"
19. His Honour went on to say at [34]-[35]: "[34] In R v Warren Alan Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1, Spigelman CJ (McClellan CJ at CL agreeing) said: '[133] As has frequently been stated, manslaughter is almost unique in its protean character as an offence. (See in particular the observations of Gleeson CJ in R v Blacklidge (unreported, Court of Criminal Appeal, 12 December 1995, esp pp2-3.) In its objective gravity it may vary, as has been pointed out, from a joke gone wrong to facts just short of murder (R v Weinman (1987) 49 SASR 248 at 252; R v Hoerler [2004] NSWCCA 184; (2004) 147 A Crim R 520 at [39]). [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. [135] For example where diminished responsibility is relied upon, the extent to which culpability is 'diminished' can vary considerably from case to case. Similarly, although it is possible to characterise a number of cases as 'child-killing by a parent or carer', it may never be possible to identify a sentencing pattern or tariff from the whole body of such cases. (See Hoerler supra.) This is not only because the number of cases in a particular category may be too few to establish a pattern or tariff. It is also because, within any such category, the relevant circumstances can vary over a wide range. This is also true in the case of manslaughter by reason of excessive self-defence (see R v Trevenna [2004] NSWCCA 43; (2003) 149 A Crim R 505).' [35] As the Court of Criminal Appeal has said: 'The crime of manslaughter comprehends all forms of punishable homicide other than murder (Crimes Act 1900, s 18). For presently relevant purposes, the crime of murder is taken to have been committed where the act of the accused, causing death, was done with intent to kill or inflict grievous bodily harm, or with reckless indifference to human life. Some forms of manslaughter, ... involve conduct which would amount to murder, except for the presence of some recognised mitigating circumstance. Other forms of manslaughter, sometimes referred to as 'involuntary', do not involve an intent to kill or inflict grievous bodily harm, or reckless indifference to human life. They may, for example, involve causing death by an unlawful and dangerous act. It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability. At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. (R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.)" (R v Blacklidge (Court of Criminal Appeal, Gleeson CJ, 12 December 1995, unreported.)'"
20. Returning to the facts of the matter presently under consideration, there can be no doubt that the conduct engaged in by choking the deceased was inherently dangerous. It was something to which the deceased consented and in fact instigated on the first occasion that they had sex. It was something that occurred in the course of a relationship but a relationship that had only been going for a few weeks.
21. The Crown submits at p 3 of the written submissions (MFI 1 on sentence), "In consequence of the paucity of similar matters from which pointed sentencing principles might be derived the Crown's submissions address instead the public policy factors underpinning the requirement for deterrence, denunciation and punishment of the subject offending."
22. The Crown referred the court to a number of decisions, one of which was Neal v R (2011) 32 VR 454. At [71] the Court (Nettle JA (as his Honour then was), Redlich JA and Kyrou AJA) said: "In the present case, counsel did not refer to any Australian authority on the point and our research has not revealed any Australian case in which it has been considered. But, with respect it appears to us that the reasoning in Dica is compelling. It is consistent with the view expressed in Brown that, absent social utility in the subject activity informed consent may not be a defence. At the same time, it accords with the fact that it has not been necessary to criminalise those who recklessly take or accept the risks associated with consensual sexual intercourse. To do so would have ramifications which extend well beyond the criminal law to considerations of social and public health policy and is more appropriately a matter for Parliament".
23. Dica is a reference to the decision of the House of Lords in R v Dica [2004] QB 1257; [2004] EWCA Crim 1103. Brown is a reference to R v Brown & Ors [1993] 2 All ER 75.
24. One of the decisions to which their Honours referred in Neal was the remarks on sentence of Vincent J in R v McIntosh [1999] VSC 358. That case involved erotic asphyxia. The facts are set out at [4] of the judgment. The facts in part recite: "…The deceased was found by his sister on 3 June 1998 in the main bedroom of the flat. He was lying face down on the bed, naked with a blindfold over his eyes and a cord around his neck. The cord was tied in a slipknot and looped twice around the neck. Post mortem examination revealed that the deceased had died by strangulations. The horns of the thyroid cartilage were fractured. There were no other signs of injury to the deceased. It was the pathologist's … opinion that the deceased would have died as a result of pressure from the cord being applied to the neck for a period of time. The circumstances of the death suggested "erotic asphyxia" and bondage … Investigation of the deceased's background revealed that he had been involved in casual homosexual relationships with a number of men in the years prior to his death. One of those men was the accused. Some of the deceased's relationships, including that with the accused, involved bondage, where ropes and blindfolds were used. The accused and the deceased first met approximately two years prior to the killing. The relationship involved periodic meetings where bondage type sex took place … The Crown case against the accused is that he deliberately pulled on the rope around the neck of the deceased whilst the two were engaged in bondage sex. It accepts that by doing so he did not have murderous intent and that the death was unintended. The Crown accepts that there was no evidence to suggest that the deceased did not consent to the rope being placed about his neck and the accused pulling on it so as to cause a degree of asphyxia, presumably on the theory that near asphyxia can heighten sexual pleasure".
25. However, the conduct of the offender in McIntosh was quite different to the conduct of the offender in the matter presently under consideration. In the matter presently under consideration I have found on the evidence that the deceased instigated the activity and consented to it. Further, in the present matter the offender upon realising that Mhelody was in distress he immediately rendered CPR and called triple-0. In McIntosh the offender engaged in various acts of dishonesty and fled interstate. McIntosh initially told police lies about some of the property in his possession and was less than forthcoming in an interview.
26. Vincent J went on to say in McIntosh at [11]-[14]: "First, it is not, of itself, and I repeat the expression, of itself, in the case of consenting adult persons contrary to the law of this jurisdiction to engage in activities that could be described as bondage or sexual sadomasochism. Second, the possibility that an activity involves the application of physical force to another and is accompanied by a real risk of even quite serious injury does not, of itself, render that activity unlawful. If that were the case many sporting contests would become unlawful. Third apart from special circumstances which the law has guarded carefully, and which are not present here, no recognition will be accorded to the consent of an individual to the infliction of significant physical injury upon himself or herself. In my opinion if the sadomasochistic activity or bondage activity to which a victim consents involves the infliction of any such injury or the reckless acceptance of the risk that it will occur then the consent of the victim will not be recognized".
27. However, his Honour went on to say at [17]-[18]: "Accepting that that may be so, the prosecutor then submitted that the inference could be safely drawn that the deceased did not consent to the kind of violence treatment to which he was, in fact subjected. There is, I consider, considerable force in this contention. It is reasonable to infer that the deceased did not agree to be strangled with the application of sufficient force that the horns of the thyroid cartilage were fractured and for what has been vaguely described by the pathologist as a period of time, or that the deceased even contemplated that force of such severity would be used. Nor do I consider that there is any suggestion in the material that you may have been under the mistaken perception that he had".
28. Again, this is different to the matter presently under consideration. There is evidence that the deceased agreed to the conduct. While not relevant to the issue of criminal liability, it is relevant to the assessment of the seriousness of this matter. Further, it is tolerably plain that the conduct or physical acts engaged in by the offender in McIntosh were more violent than that in the present matter.
29. The decision in McIntosh is cited with approval in the decision of R v Stein [2007] VSCA 300.
30. The Crown submitted that the offender in the present matter did not turn his mind to the risks involved in engaging in the activity that he did. Further, that that fact (that he did not turn his mind to the risks involved) did not affect the assessment of the seriousness of the matter. The Crown's submissions continued that the activity in which the offender engaged (i.e. by choking the deceased) was so inherently dangerous that it brings the objective seriousness of the matter towards the middle of the range.
31. However, the Crown went on to concede that the court was essentially in unchartered territory. Further, that the acts of the offender in the present matter were potentially as serious as in McIntosh, but the present matter could be distinguished because of the other conduct of the offender in McIntosh.
32. It occurs to me that considerable care will need to be taken not to confuse or conflate the matters that go to creating criminal liability for the conduct with matters that go to inform the objective seriousness of the matter. Based on paragraphs [12] and [13] of the decision I have read what was said by Vincent J at [14] in McIntosh as going to the issue of the grounding of criminal liability as opposed to something that informs the objective seriousness of the matter.
33. In her written submissions the Crown Prosecutor comprehensively deals with the authorities to which I have earlier referred in these reasons.
34. The Crown also submitted that the matter must be viewed in the context that the offender understood in doing what he did he was compromising the victim's ability to breathe. Further, there was no discussion between the accused and deceased before or during the acts in the past.
35. Further, the Crown submitted that the short relationship between the offender and Ms Bruno relates to whether and to what extent there was a level of trust between them. It was also submitted that in the present matter there was no setting of boundaries where the conduct involves a high level of dangerousness. The submission was put the more dangerous the activity the more serious the matter.
36. The Crown submitted that the activity was so inherently dangerous that it brings the objective seriousness of the matter towards the middle of the range. The submission continued that this had nothing to do with an act that occurred in the privacy of the bedroom and further that people need to be protected from violence in a sexual setting.
37. I have already observed that care will need to be taken not to confuse or conflate the factors that bring about criminal liability with those factors that inform the objective gravity or seriousness of the offence.
38. However, the Crown Prosecutor went on to acknowledge that with so few cases the parties and the court were in uncharted territory. Be that as it may she went on to submit that the facts in the matter of McIntosh were more serious than the matter presently under consideration.
39. Mr Dennis SC in reply put that the length of the relationship had little to do with the seriousness of the matter. Senior Counsel went on to make what he appropriately called a bold submission in that in lay terms the matter was an accident. It was then submitted that the matter is at the bottom of the scale of seriousness.
40. There can be no doubt that the conduct in which the offender engaged was inherently dangerous in that it was liable to produce the consequences that it did on this occasion. The inherent dangerousness is in the application of force to the throat to restrict, and in this case significantly restrict, the ability of the deceased to breathe. It involved at some real degree of force to be applied by the offender with one hand. It is the inherently dangerous nature of the conduct that creates the criminal liability for the offence of manslaughter.
41. However, the act was committed in course of a consensual sexual act and was something in which the deceased and the offender had engaged in a number of occasions previously in the course of a relatively short relationship. The deceased at least impliedly consented to the conduct. There was an agreement as to a method of communication whereby the deceased would tap on the offender's arm. Tragically that did not work on this occasion. The offender reacted quickly when he realised there was a difficulty and commenced CPR and called 000. In all of the circumstances I am of the opinion that the matter is towards the lower end on the scale of seriousness for matters of manslaughter.

Criminal History

1. The offender was born on 7 October 1987 and accordingly was almost 32 at the time of the offending and is 33 years of age at the time of sentence. He was convicted of a mid-range PCA offence in 2009 in respect of which a fine was imposed. Essentially the offender is to be sentenced on the basis that he is a person of prior good character. Victim impact statements
2. At tabs 4 to 9 inclusive of exhibit A on sentence (Crown Tender Bundle) there appears victim impact statements from the following: 1. Estodilo Bruno, father of the deceased; 2. Avelina Bruno, mother of the deceased; 3. Christine Bruno, sister of the deceased; 4. Dhelia Bruno, sister of the deceased; 5. Leonel Bruno, brother of the deceased; and 6. Richard Bruno, brother of the deceased.
3. Each of those victim impact statements contains a number of family photographs. Clearly the deceased was a much-loved member of the family. The statements speak eloquently of the loss suffered by the various members of the deceased's family. It is always regrettable when a young life is lost. For what it is worth, the Court extends its sincerest condolences to the family of the deceased.

Subjective Case

1. During the short evidence in chief the offender confirmed that he told the truth to Mr Borenstein, the author of the psychological report. He also said he told the truth in the record of interview. That interview is not part of the material that is before me, but the offender was cross-examined on some aspects of the interview.
2. Mr Borenstein's report sets out that at the time of offending the offender was a member of the Royal Australian Air Force, holding the rank of Corporal and in early 2019 he returned from deployment in the Middle East. He consulted a psychologist complaining of amotivation, anhedonia (ie inability to feel pleasure) and impaired concentration. He had suffered similar symptoms in 2012. He was referred to a psychiatrist in early 2019 and commenced a low dose of an antidepressant.
3. The offender's account to Mr Borenstein as to how he and the victim met is consistent with what is contained in the facts. The account of the incident that led to the death of the victim is also generally consistent with the facts.
4. The offender gave an account of having been a binge drinker resulting in memory loss and blackouts but not on the night or morning of the incident that led to Mhelody's death. He had also used various illicit substances in the past but had not used them for "years".
5. Following Mhelody's death the offender remained in Wagga Wagga until he was terminated by the RAAF. The offender ruminated over the events and suffered with sleep disturbance and instructive recollections about the incident. He was abstinent from alcohol for some time after the incident but has since resumed very moderate drinking.
6. Going to the offender's personal background his parents worked with the ATO (Australian Taxation Office) in Canberra and have both retired. There is no history of trauma, abuse or domestic violence. He went to school in Wollongong and completed secondary school in Canberra.
7. The offender joined the RAAF after he completed Year 11 of High School. He initially trained in avionics but later moved to an administrative position. There is no family history of psychiatric or psychological disorder. The report goes on to set out there is no history of violence to others and the offender described a normal psychosexual history. He developed an interest in pornography including transgender pornography.
8. Testing by Mr Borenstein indicated that the offender has a propensity to act impulsively without considering the consequences of his actions. Testing also confirmed severe symptoms of Post-Traumatic Stress Disorder (PTSD) in the wake of Mhelody's death. PTSD is the current diagnosis. According to Mr Borenstein the offender remains burdened by guilt, remorse and avoids any reminder of the incident, consistent with PTSD which explains why the offender has not sought treatment.
9. Mr Borenstein opines that the offender requires ongoing psychological treatment to address "his acquired psychological discord, namely chronic and complex PTSD consequent to the events which took place on 21 September 2019.
10. Given the evidence of the offender and the contents of Mr Borenstein's report I am more than satisfied on balance that the offender is remorseful. Given the lack of record and the unusual nature of the offending I am satisfied on balance that he is unlikely to re-offend. Given the unusual nature of the offending it seems more than a little artificial to make a finding about prospects of rehabilitation. However, given the offender's age and lack of record for the purposes of proceeding to sentence I am satisfied on balance that the offender has good prospects of rehabilitation. Nevertheless, he should continue with the course of counselling recommended by Mr Borenstein.
11. Exhibit 2 on sentence is the Termination Decision of the RAAF. The decision is dated 3 August 2020 and advises the offender that because of the matter presently under consideration his employment with the RAAF has been terminated. Mr Dennis SC in his written submissions puts that there has been extra curial punishment. I did not understand the Crown to dissent from that.
12. Given the various authorities including, R v Daetz; R v Wilson [2003] NSWCCA 216 at [61]-[62] and Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [32] I am of the opinion that the termination of the offender's employment amounts to extra curial punishment and should be taken into account in determining the appropriate sentence in this matter.
13. Exhibit 3 on sentence is a letter from Dr Erwin Moore, a general practitioner contracted to the Department of Defence and is attached to RAAF Base Wagga. The offender consulted Dr Moore professionally. Dr Moore has kept in contact with the offender since the arrest. He opines that the events that bring the offender before the court have impacted on the offender's mental health and speaks of the remorse the offender feels because of what occurred.
14. Exhibit 4 is a series of three testimonial references. The letter from Corporal Alan Stocks goes beyond what one usually reads in such a reference. Cpl Stocks and the offender underwent recruit (basic) training together. The offender gave significant moral and other support to Cpl Stocks over several years and was of considerable assistance in several episodes in Cpl Stocks' life. He also sets out the various awards and achievements attained by the offender while he was serving in the RAAF. Both the offender and Cpl Stocks went on deployment to the Middle East at the same time. The offender was apparently instrumental in Cpl Stocks attaining and maintaining physical fitness.
15. Jenna and Andrew Gibson are friends of the offender. Ms Gibson speaks of the adverse effects the matter has had on the offender and she describes the offender as trustworthy and kind.
16. Mr Gibson is an avionics instructor at RAAF Base Wagga and was a serving member of the RAAF for 14 years. He has known the offender for 12 years. The offender assisted Mr Gibson in being abstinent from alcohol. Generally, he speaks very highly of the offender and of the adverse effects this matter has had on the offender.
17. Clearly enough the offender enjoys an excellent reputation with people with whom he has worked. Clearly, he has shown concern and compassion for others. He has made a valuable contribution to the community.

Submissions of the parties

1. Counsel for both parties provided helpful and comprehensive written submissions. I have already dealt with a number of the submissions by Mr Dennis SC on behalf of the offender. He does not concede the "threshold" in s 5(1) of the Crimes (Sentencing Procedure) Act is crossed. He goes on to submit that the court deal with the matter by way of imposition of a Community Corrections Order.
2. Mr Dennis SC goes on to submit that much will turn on the evaluation of the objective seriousness of the matter. I have for reasons already given found that the objective seriousness is towards the bottom of the range of seriousness for matters of manslaughter. It is then submitted that given this finding it is open to the court to deal with the matter by way of sentence other than that of full-time custody.
3. Further, Mr Dennis submits that the statistics show that a significant number of sentences for manslaughter result in something other than a full-time custodial sentence.
4. In this regard the "post reform statistics" show that of a sample of 38 cases, 37 received a sentence of full-time custody and in one case a Community Corrections Order was imposed.
5. Going to the "pre-reform statistics" of a sample of 280 cases, a total of 264 resulted in sentences of full-time custody, three cases were dealt with by s 9 bond, eight were dealt with by way of suspended sentence, one by ICO and two by periodic detention. One case was dealt with pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act and another is noted on the statistics as "CC". Clearly there are cases of manslaughter that are dealt with other than by way of sentences of full-time custody.
6. With the post reform statistics where sentences of full-time custody were imposed the total sentence ranges from 2 years to 14 years. With the pre-reform statistics where full-time custody was imposed the total sentence ranges from 3 years to 20 years.
7. Mr Dennis SC addressed on the statistics and accordingly I accessed them. I have considered the statistics but warn myself about the use of those statistics conformably with decisions such as Hili & Jones v The Queen [2010] HCA 45 and Brown v R [2014] NSWCCA 215 per Garling J at [81]. The nature of the crime of manslaughter adds to the need for caution when considering with the statistics. However, it can be safely assumed that many of the more severe sentences for manslaughter would be in cases where murder has been reduced to manslaughter by reason of provocation.
8. Senior Counsel for the offender addressed the submission by the Crown that any sentence other than full time custody would be inadequate. Mr Dennis SC put in his written submissions (see paragraph 25), which were amplified in oral submissions, that in order for the Crown to demonstrate or forecast error on the grounds of manifest inadequacy the Crown would need to show that there is a prevailing pattern or range for offences of a like nature and that the present matter manifestly falls below that range. The submission continued - at least as I understood the submission - that there is simply no prevailing pattern and therefore the Crown cannot demonstrate that the present matter manifestly falls below that range.
9. The Crown submitted that the Crown put the matter forward as manslaughter by unlawful and dangerous act. I have addressed the submissions made by the Crown as to the seriousness of the matter under that heading earlier in these reasons.
10. Senior Counsel concluded his oral submissions by urging the court not to send his client to gaol.

General Remarks

1. I must of course give effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A of the Act sets out the purposes of punishment, namely: 1. to prevent crime by deterring the offender and other persons from committing similar offences, 2. to protect the community from the offender, 3. to promote the rehabilitation of the offender, 4. to make the offender accountable for his or her actions, 5. ensure that the offender is adequately punished for the offence, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
2. Section 5(1) of the Act provides in effect that a court should not impose any sentence of imprisonment unless having considered all other options is of the opinion that no other sentence is appropriate. Given the nature of the offending, including that this matter involves the death of a human being, and taking into account the maximum penalty provided I am firmly of the opinion that no other sentence is appropriate. I disagree with the primary submission advanced by Senior Counsel for the offender.
3. In all of the circumstances I am of the opinion that the appropriate starting point is 2 years 6 months which with the deduction of 25% for the value of the plea of guilty produces a total sentence of 1 year 10 months or 22 months. The issue now is as to the means by which the sentence is to be served.
4. Mr Dennis SC did not specifically address on an Intensive Correction Order. However, I will deal with the submission that the court not send the offender to gaol to be a submission to the effect that if I do not accede to his primary submission and find the matter crosses the threshold in s 5(1) of the Crimes (Sentencing Procedure) Act as a secondary submission then I should consider an Intensive Correction Order.
5. Section 66 of the Crimes (Sentencing Procedure) Act relevantly provides: 66 Community safety and other considerations (1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender. (2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. (3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.
6. What follows on the issue of Intensive Correction Orders is drawn from my reasons in Elphick v R [2021] NSWDC 1.
7. There has been a considerable amount of litigation on intensive correction orders, the latest decision (at least at the time of the preparation of these remarks) being Wany v DPP [2020] NSWCA 318. The controversy (for want of a better word) commenced with the decision of R v Pullen [2018] NSWCCA 264. Thereafter there was R v Fangaloka [2019] NSWCCA 173, Casella v R [2019] NSWCCA 201, Karout v R [2019] NSWCCA 253 and Cross v R [2019] NSWCCA 280. Fangaloka and Karout were subject to applications for Special Leave to the High Court - see [2020] HCASL 12 and [2020] HCASL 56 respectively - with both applications separately being dealt with "on the papers" with Gordon and Edelman JJ concluding in Fangaloka that "…The Application does not give rise to any reason to doubt the correctness of the decision of the Court of Criminal Appeal…". In Karout Gordon and Edelman JJ concluded that "…The proposed grounds…have insufficient prospects of success to warrant a grant of special leave".
8. The doctrine of precedent dictates that judges at first instance should follow Fangaloka and Karout.
9. Basten JA (Johnson & Price JJ agreeing) in Fangaloka said at [65]-[66]: "The better view is that the legislature has, appropriately, acted upon the available evidence by requiring the court to have regard to a specific consideration, namely the likelihood of a particular form of order addressing the offender's risk of reoffending. That obligation, imposed by s 66(2), is not stated to be in derogation of the more general purposes of sentencing outlined in s 3A, nor in derogation of other relevant matters: s 66(3). Nor does the legislation limit the consideration of community safety to a means more likely to address the risk of reoffending; it merely identifies that as a mandatory element for consideration. [66] There is no doubt that community safety can operate in different ways in different circumstances. It is conventionally accepted that a purpose of punishment, including by way of imprisonment, is to deter the offender from further offending; it is also accepted that removal of an offender from the community for a period may have a protective function. The purpose of s 66, on this approach, is merely to ensure that the court does not assume that fulltime detention is more likely to address a risk of reoffending than a community-based program of supervised activity. Consistently with that view, s 66 does not seek to address potentially conflicting demands of community safety in the short term, as opposed to the longer term, and the risk that leniency will be abused. In short, there is nothing in s 66 which favours an ICO over imprisonment by way of fulltime custody. Further, while s 66 expressly referred to s 3A, it did so, not by identifying it as a set of "subordinate" considerations, but as mandatory considerations. It would be wrong for a court to treat every consideration other than the means of addressing the risk of reoffending as a subordinate consideration."
10. Hoeben CJ at CL agreed with the judgment of Fullerton J in Karout with Brereton JA dissenting. Fullerton J said at [90]: "Adopting and applying that analysis (with which I agree), I consider that were the Legislature to have intended to impose on sentencing courts an obligation to give paramount consideration to community supervised programs as a means of ensuring community safety as one of the purposes of sentencing in s 3A(c) of the Sentencing Act, or to impose on a sentencing court a statutory obligation to give reasons for concluding that the other purposes of sentencing in s 3A, alone or in combination, dictate that even where the offender's risk of reoffending is such that community protection can be sufficiently addressed by an ICO, a sentence of full-time custody is the appropriate sentencing outcome, I would have expected the Legislature would have made that plain when the 2018 amending Act was passed."
11. Her Honour went on to say at [94]: "The fact that his Honour made positive findings as to the applicant's good prospects of rehabilitation and that he was unlikely to reoffend, findings which might, in addition to a finding of special circumstances, have supported the exercise of the power in s 66 for the making of an ICO, did not dictate that an ICO was the appropriate sentencing outcome. Consistent with the obligation in s 66(3) that his Honour also take into consideration the purposes of sentencing in s 3A of the Sentencing Act and any relevant common law sentencing principles, it is clear that in declining to make an ICO the objective seriousness of the applicant's offending and the principles of general deterrence (being amongst the mandatory considerations his Honour was obliged to consider under s 66(3) in deciding whether the power to make the ICO should be exercised) overwhelmed other considerations that were in play."
12. Wany v DPP involved an appeal to the Court of Appeal from a decision from a Judge of the District Court determining an appeal from the Local Court. The Court found jurisdictional error and remitted the matter to the District Court. McCallum JA (Meagher JA, Simpson AJA agreeing) said at [64]: "That is not to say that, having reached a conclusion favouring an ICO on that issue, the sentencing court cannot still refuse to make such an order. The weight to be given to the outcome of that determination is then a matter within the discretionary judgment of the sentencing judge. So much is made plain by s 66(3); and see the remarks of Basten JA in Fangaloka at [65]. But the point of the section is to require the sentencing court to consider that question without any preconception in favour of incarceration as the only path to rehabilitation."
13. Her Honour went on to say at [68]: "Mr Game noted that, in Kirk, both the description of the offence and what was regarded as a defence in the relevant legislation were regarded as being jurisdictional, as was the fact that the offence was determined not according to the rules of evidence, because the defendant was called as a witness by the prosecution. In circumstances where Parliament has provided for different ways of serving a custodial sentence and has conferred power on the sentencing court to make the determination as to which should be adopted, I see no reason why the method of serving the sentence to be imposed should not be regarded as jurisdictional. The language of the statute is clear. Community safety "must be" the paramount consideration. When considering community safety, the sentencing court "is to" make the assessment specified. As Basten JA explained in Fangaloka, that obligation "is not stated to be in derogation of the more general purposes of sentencing outlined in s 3A, nor in derogation of other relevant matters: s 66(3)" but it is mandatory."
14. Returning to the provisions of s 66 of the Crimes (Sentencing Procedure) Act given the offender's age and lack of record noting the circumstances of the offending in this matter I am satisfied that there is no issue or concern so far as public safety is concerned.
15. Likewise, it seems to me that subsection (2) of s 66 has little work to do. I have found that the offender is unlikely to re-offend. I am far more positive in making that finding with this offender than many others. I am not able to determine whether custody or an intensive correction order is more likely to address the issue of the likelihood of re-offending.
16. That means I then go to subsection (3) of s 66 of the Act and apply general sentencing principles. I agree with the submission of Senior Counsel for the offender that the finding as the objective seriousness or gravity of this matter will largely determine the sentence.
17. Given all the matters referred to within these reasons I am of the opinion that this is an appropriate matter for the offender to serve the sentence by way of Intensive Correction Order. However, there should be a substantial component of community service attaching to that order.

Orders

1. In respect of the charge that: "(you) on or about 21 September 2019 at Wagga Wagga in the State of New South Wales did unlawfully kill Mhelody Bruno, contrary to s 18(1)(b) of the Crimes Act, 1900, You are convicted.
2. I sentence you to imprisonment for 22 months. I direct that sentence be served by way of Intensive Correction Order. The conditions of that order are: 1. The offender is not to commit any further offences while subject to this Order; and 2. The offender is to be supervised for the period of the Order by the Department of Community Corrections; and 3. The offender is to perform 500 hours of community service. The offender should report to the Queanbeyan office of the Department of Community Corrections no later than 4pm on 19 March 2021

Amendments 29 March 2021 - This is to be read in conjunction with R v Toyer (No 2) [2021] NSWDC 92. The reasons and findings up to and including para [83] remain. The sentence of 22 months was confirmed but it was in error to order it be served by ICO. There being no available alternative to full time custody, the offender was re-sentenced to 12 months non parole period with balance of term 10 months to date from 29/3/21. 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: 29 March 2021