In dealing with these three considerations the Judge took into account the history of sexual abuse. His Honour noted that in the intervening period there had been further sexual approaches made to the applicant by the deceased. The Judge found that the applicant had been able to turn these approaches to some personal advantage by obtaining cannabis and money from the deceased from time to time. His Honour took into account the applicant's expectation that he may be the subject of a further sexual advance at the time he entered the deceased's premises on the day of the killing. This led him to conclude that the degree of provocation was relatively low. Turning to the second of the considerations, his Honour found that the provocation was of a cumulative kind and that the deceased's advance in the kitchen on the day of the killing had been a triggering event. This tended to reduce the objective gravity of the offence. In considering the third factor his Honour found the degree of violence and aggression displayed by the applicant to have been excessive.
29 If one took the passage relied upon by Mr Hamill at [25] in isolation it might convey that the Judge considered that the history of sexual abuse afforded no mitigation in assessing the applicant's culpability for his offence. When the whole of the reasons are read I am satisfied that his Honour paid proper regard to the evidence of sexual abuse in assessing the gravity of the offence and in considering the subjective circumstances of the applicant. I would reject this ground of appeal.
30 I turn next to the ground that challenges the sentence as being manifestly excessive. Mr Hamill attached a schedule to his written submissions setting out brief details of sentences imposed at first instance and in this Court in manslaughter cases. He contended that the schedule afforded some basis for concluding that the sentence imposed in this case fell outside the range of sound discretion. The range of circumstances found in the cases included in the schedule serves to reinforce the frequently cited observation of Gleeson CJ (as his Honour then was) in R v Blacklidge (unreported) NSWCCA, 12 December 1995 at 4:
"It has long been recognised that the circumstances that may give rise to a conviction for manslaughter are so various, and the range of culpability is so wide, that it is not possible to point to any established sentencing tariff that can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability."
31 Mr Hamill acknowledged the hurdle that he faced. In his written submissions he conceded that the range of sentences for manslaughter is very wide and that it is difficult to discern meaningful patterns from either the statistics or from the decisions in previous cases (AWS 5.1). Nevertheless he sought to draw attention to cases that might broadly be characterised as like cases and to submit by reference to them that the present sentence is manifestly excessive. He relied on R v PRFN [2000] NSWCCA 230 and R v Green [1999] NSWCCA 97.
32 The applicant in PRFN was sentenced to imprisonment for a term of six years comprising a minimum term of three years and an additional term of three years. He was a juvenile. He had been anally raped by the deceased when he was aged fourteen years. He was friendly with the deceased's son and was staying at the deceased's home on the occasion of the assault. The evidence was that this episode had a devastating psychological effect upon the appellant. He became withdrawn and his schoolwork suffered. He entertained thoughts of suicide and carried out acts of self-harm, including cutting himself with a razor and placing his hand on the hotplate of the family's combustion stove. About eighteen months after the assault the appellant disclosed that he had been sexually abused and his family set about obtaining psychological assistance for him. This had not matured into counselling prior to the date of the killing. The killing in PRFN was planned. At the time the appellant was suffering from post-traumatic stress disorder and a major depressive disorder. Both were related to the earlier rape. The disorders were characterised by continued intrusive and intense thoughts in relation to the sexual assault and a preoccupation with sexual abuse manifesting itself in physical symptoms including nausea, trembling and difficulty in breathing.
33 An appeal against the severity of sentence in PFRN was dismissed. Giles JA (in a judgment with which Grove J and Greg James J agreed) noted that the trial judge had been very conscious of the appellant's youth. The trial judge found the appellant to be a person whose prospects of rehabilitation should be excellent. I do not consider that the applicant's reliance upon PRFN assists him. The principles governing the sentencing of children are well known and, generally, commend an approach in which less emphasis is placed on considerations of general deterrence than would be appropriate in sentencing an adult offender.
34 The other case that was said to be broadly similar to the present is that of Green. The effective sentence in that case was one of nine years and nine months with an effective minimum term of seven years and three months. In his written submissions Mr Hamill contended that the conduct in Green was far less provocative than that in the present case and the attack a ferocious one. I do not consider that Green lends support to the applicant's challenge. I would not characterise the provocation in Green as being of a lesser degree than the provocation found by the Judge in this case. The killing in this case also exhibited considerable ferocity.
35 It is necessary to keep in mind that the applicant was on parole for an offence involving a stabbing at the time of the killing. This was an aggravating feature of the offence; R v Readman (1990) 47 A Crim R 181. I would reject the ground that contends that the sentence is manifestly excessive.
36 I return to the second ground of appeal that relates to the applicant's offer to plead guilty to manslaughter. During the course of the sentence hearing the Crown Prosecutor informed the Judge that in the week prior to the commencement of the trial the applicant's counsel had raised with her the prospect that his client might plead guilty to manslaughter. That offer was not accepted by the Crown. The judge referred to this circumstance saying:
"The Crown, I am told rejected, apparently, a quite late offer of a plea of guilty to manslaughter and in my view the Crown is perfectly entitled to do so. I do not regard the late offer of a plea as indicative of remorse. Indeed, there are suggestions in the material that the prisoner continues to harbour some degree of self justification for his taking of the life of Mr Ferguson; nor do I find that it is appropriate to reduce or rather extend the period to be served after release on parole by way of a finding of special circumstances". (ROS 27-28).
37 In Mr Hamill's submission the Judge erred in failing to allow any discount in recognition of the applicant's offer to plead guilty to manslaughter. In his submission it was not to the point that no criticism might be levelled at the Crown for refusing the offer. He contended that it was neither just nor fair that a person whose offer to plead guilty was rejected by the Crown be placed in a less advantageous position than the person whose offer is accepted. He referred us to R v Oinonen [1999] NSWCCA 310; R v Pennisi [2001] NSWCCA 326; R v Tran [1999] NSWCCA 443 at [25] and R v Cardoso [2003] NSWCCA 15.
38 In Oinonen Grove J (in a judgment with which Spigelman CJ and Sully J concurred) observed at [15]:
"It is true that technically the applicant did not plead guilty to manslaughter and he therefore does not fall within the precise terms of section 439 of the Crimes Act . There has been a long practice, however, in this Court and in trial courts to take into account the offer of a plea of guilty which matches the crime for which a person is ultimately convicted."
39 The Court in Oinonen found the trial judge to have erred in failing to allow some discount to reflect the appellant's offer to plea guilty to manslaughter. In that case Grove J made reference to the "utilitarian value of the offer of his plea".
40 In written submissions filed prior to the decision of this Court in Cardoso the Crown contended:
"The Crown accepts that in respect of 'utilitarian' considerations, a rule of practice clearly seems to have emerged that courts should 'take into account the offer of a plea of guilty which matches the crime for which the person is ultimately convicted' ( Oinonen & Pennisi ). That approach has been clearly endorsed not withstanding the absence of actual utility.
The concept of 'notional utility' is an inherently contradictory one and as the decisions of the court do not identify the precise basis of the discount they should be reviewed in light of Cameron (which held that the rationale for a plea discount was totally subjective, namely a willingness to facilitate the course of justice), and R v Sharma [2002] NSWCCA 142 (which resisted the totally subjective approach on the basis of the legislative provisions in NSW dealing with actual pleas).
It seems clear that the basis of any discount where no plea has actually been entered must necessarily be subjective and not objective. It could be argued discounts of the magnitude of those given for objective utilitarian considerations are inappropriate when the court is confined to the subjective factor of preparedness to facilitate the administration of justice: that it is actual utility that attracts the utilitarian discount. Adopting this approach, once the basis for a discount for the offer of a plea is correctly identified as purely subjective, it would then become necessary to have regard to the motivation of the applicant and questions of self-interest may become relevant ( Sharma at [42]).
It is however perhaps debatable whether such an approach is appropriate where the Crown in effect has by its rejection of the plea offer forced the applicant to plead not guilty. Why, it may be argued, should the possible discount offered to an applicant ultimately depend upon subjective considerations as a result of a possibly capricious or erroneous decision of a Crown Prosecutor in a particular case who refuses to accept a plea, especially where that decision has ultimately proved to be incorrect. If the plea was accepted in this matter, there would have been some two weeks of court time saved as well as all the other well recognised 'utilitarian' benefits."
41 This Court considered a number of the issues raised in the above submissions in Cardoso. The applicant in that case offered to plead guilty to manslaughter. The Crown rejected the offer. At trial he sought an outright acquittal relying on the Crown's inability to negative self-defence. On appeal against the severity of the sentence imposed on him following his conviction for manslaughter, Hidden J (in a judgment with which Greg James J agreed) said:
"[17] The Crown Prosecutor before us challenged the reasoning in that judgment ( Oinonen ) submitting that it cannot stand with the later decision of Thomson and Houlton , recently revisited in R v Sharma (2002) 54 NSWLR 300. The affirmation by those cases of the purely utilitarian benefit of a plea of guilty, he argued, was directed only to those cases in which that benefit was realised by the entry of that plea and the avoidance or curtailment of a trial. No such benefit flows from the offer of a plea of guilty to a lesser charge which the Crown does not accept. There is no concept of 'notional utility', the argument continued, whereby the offender who is found guilty of that lesser charge is extended the leniency which he or she might have earned if that offer had been accepted and the matter had not proceeded to trial.
[18] The Crown Prosecutor acknowledged that the offer of such a plea might attract leniency subjectively, as it might demonstrate remorse or, at least, a willingness to facilitate the course of justice: Cameron v The Queen (2002) 187 ALR 65, in the joint judgment at [13] - [14]. However, he observed correctly that Sharma , in which Cameron was considered, maintains a distinction between the subjective considerations raised by a plea of guilty and the utilitarian value of the plea, viewed objectively. Of course, that utilitarian value attaches to a plea of guilty to a crime less serious than that originally charged: R v Morton [1986] VR 863 at 867, cited in Sharma at [46].
"[19] Hulme J passed sentence in the present case before the High Court handed down its decision in Cameron , and the notion of a willingness to facilitate the course of justice had not yet been introduced into sentencing law. His Honour expressly took into account the applicant's remorse but he made no allowance for his offer to plead guilty to manslaughter. Here, in my respectful view, his Honour fell into error. The applicant had offered to plead guilty to a lesser charge which could fairly be justified on the available evidence and which, in the event, the jury found to be the appropriate measure of his culpability. The Crown chose not to accept that offer, a matter which was beyond the applicant's control. If the offer had been accepted, the same result would have been achieved without the necessity of a trial.
[20] It is not to the point that, that offer having been rejected, the applicant chose not to plead guilty to manslaughter in the presence of the jury and raised an issue at the trial which could have led to his outright acquittal. (As it happens, self defence could now give rise to the alternative verdict of guilty of manslaughter because of subsequent amendments to the Crimes Act : see Div 3 of Pt 11 of the Act and, in particular, s 421.) A plea of guilty at that stage would not have been accepted by the Crown and the trial would have proceeded in any event.
[21] Oinonen was dealing with a special situation to which no reference was made in Thomson and Houlton or Sharma , and I see no inconsistency between the reasoning in Grove J's judgment and those later important cases. If the submission of the Crown prosecutor in this Court were upheld, the measure of leniency afforded to an offender such as the applicant, prepared to plead guilty to a lesser charge fairly available on the evidence, would depend upon the Crown's attitude. This would be unacceptable."
42 In oral submissions the Crown Prosecutor directed attention to [19] of the judgment set out above. Hidden J there referred to an offer to plead guilty to a lesser charge "which could fairly be justified on the available evidence". In the Crown's submission before a discount is allowed the sentencing judge must assess whether the offer to plead guilty to the lesser offence was one fairly open to acceptance by the Crown. In some cases an offer to plead guilty to manslaughter it was submitted may not evidence a willingness to facilitate the course of justice but rather be a cynical attempt to secure a position of advantage (in the unlikely event of a conviction for manslaughter).
43 The jury's verdict determines the characterisation in law of the offender's culpability for his or her unlawful killing. In any case in which the verdict is one of guilt of manslaughter it is difficult to see how the offender's offer to plead guilty to that offence might be held to have been not fairly open to acceptance by the Crown. It is not necessary to determine the matter since the Crown Prosecutor did not press any submission that in this case the applicant's offer to plead guilty to manslaughter was not fairly open to acceptance by the Crown. (This is not to say that the Crown was not justified in refusing the offer and seeking to have the jury's verdict on the more serious count).