17 It is clear from his statement to Julie Brown that the offender was extremely angry when he discontinued his walk home and went in the opposite direction to Whitton Lane with the intention of obtaining the knife. He was not going to allow those who had humiliated him and taken his clothing to "get away with it" or "put it over" him. It was suggested on behalf of the Crown that those words indicated an intention on his part, formed at that time, to get even with those who had offended him, to retaliate, indeed to injure or kill. I do not accept that. It is obviously possible that that was what was in the accused's mind, but I could not be so satisfied beyond reasonable doubt. He would achieve his object of not letting them "get away with it" or "put it over" him if, using the knife to scare them, he succeeded in retrieving the T-shirt and cap. Clearly he went to the house and obtained the knife with an intention to use it in some way aggressively, but I cannot conclude that his intention at that stage was other than to threaten in order to scare.
18 It was submitted on behalf of the Crown that the fact that he carried the knife in a concealed manner, as described earlier, would assist in leading to a conclusion that he had the intention of killing or wounding. Again, I have to say that it is obviously a possibility that his purpose was to keep the knife concealed until the last moment so that he could use it to inflict serious injury, but I cannot say that that is certainly the case. It appears to be an equal and reasonable possibility that his purpose in carrying the knife as he did, concealing it as he did, was simply so that he would not attract attention as he walked through the streets of the town to the Hot Bake, and that he kept it concealed when he first arrived there in order that he would not be set upon and disarmed before he was in a position to act as he intended. I find therefore that I am not satisfied beyond reasonable doubt that the accused had formed an intention to kill or inflict grievous bodily harm prior to the time when, carrying the knife concealed, he reached the group at the Hot Bake.
19 However, it is clear that if his intention had been, when he obtained the knife and while he was carrying it to that location, to use it on arrival to threaten and thus scare his tormenters into returning his clothing to him, he did not in fact do anything at all directed to fulfilment of that purpose. Instead, as I have observed, his reaction to the further taunting remark from Sam Dyball was immediately to produce the knife and stab his tormentor. Intention is not the same as premeditation. An intention to kill or inflict grievous bodily harm may be formed and carried out in the instant. Having regard to the manner in which the offender used the knife and the area of Dyball's body to which he directed his blow, I find myself satisfied beyond reasonable doubt that he acted with the intention of inflicting really serious bodily injury. I am not able to find beyond reasonable doubt that he intended to kill, for I accept the submission of his counsel that it is probable that, as he claimed, he had no real idea of the possibly fatal consequences of such a blow. I cannot, however, entertain any doubt but that he intended by the manner in which he struck Sam Dyball to inflict upon him a really serious injury.
20 That leaves only provocation as a basis for the conclusion that the offender's crime was manslaughter, not murder, and I am comfortable with that view of the case. The conduct of Dyball and his associates was, in my view, conduct of an obviously provocative kind. The conduct of persons other than the deceased himself may be taken into account where it was engaged in circumstances such that it can reasonably be regarded as one with the conduct of the deceased himself (Kenney (1983) VR 470; Tumanako (1992) 64 ACrimR 148). Alternatively, it can simply be regarded as part of the surrounding circumstances against which the offender's perception of the gravity of Dyball's provocative conduct has to be assessed. In this case it makes no difference. The offender was somewhat intoxicated; he was teased, and as I find, he was humiliated by Dyball in the face of a considerable group of his peers; he felt intensely the loss of his cap which held special value to him. He did not react to the initial provocative conduct by any resort to violence, but I have no doubt that that conduct continued to play on his mind from the time when he left the scene until he resolved to obtain and use the knife to get his clothing back, and continued to occupy his mind from the time when he obtained the knife until he returned to the Hot Bake. Nevertheless, it is clear from the description of what he did that, despite conduct which he might well have perceived as grave provocation, he remained in control up to the point where Dyball made one further taunting remark to him. I am satisfied that in response to that last remark of Dyball's, accumulated of course upon all that had gone before, the accused finally lost his self control, and formed the intention of seriously injuring Dyball and attacked. To my mind, there is no doubt at all that the provocative conduct, attributing to it such gravity as the offender himself may have attributed to it, was such as could have caused an ordinary person in the position of the accused to lose control to the extent of forming a murderous intent.
21 For those reasons I have come to the conclusion that this case must be treated as one where murder is reduced to manslaughter only by virtue of provocation, and it is on that basis that the offender is to be sentenced.
22 There is no rule of law which prescribes that manslaughter by reason of provocation is necessarily and always to be regarded as a more serious offence than manslaughter by an unlawful and dangerous act. Much will depend upon the circumstances, and the circumstances which may give rise to a conviction of manslaughter may vary enormously, for which reason the problem of sentencing for manslaughter has always been recognised as one of the most difficult sentencing tasks. It is not difficult to bring to mind cases of manslaughter by an unlawful and dangerous act where the act in question was so grossly and obviously dangerous as to make the offence one of extreme gravity. Nevertheless, in manslaughter by provocation it is necessary to give proper weight to the fact that the act causing death was done with murderous intent.
23 In Regina v Blacklidge (unreported) NSWCCA 12 December 1995, Gleeson CJ observed (in a case where the finding of manslaughter was based upon diminished responsibility pursuant to s 23A of the Crimes Act):
"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, such as that with which we are presently concerned, 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 is 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 the 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 ACrimR 349; R v Hill (1981) 3 A CrimR 397 at 402).
"When the basis of a finding of manslaughter is diminished responsibility, pursuant to s 23 A of the Crimes Act , what is nevertheless ordinarily involved and what is involved in the present case is a conclusion that the taking of human life was the consequence of a deliberate and willed act, performed with intent to kill or cause grievous bodily harm, or with reckless indifference to human life. The abnormality of mind substantially impairs the offender's mental responsibility for his or her act but it does not negate such responsibility. The reduction in the capacity for self control which results from the abnormality of mind diminishes the responsibility but it does not excuse the act ( R v Low (1991) 57 ACrimR 8).
Making a judgment as to the extent to which, in a given case, responsibility is diminished, can be a difficult task. The hypothesis however is that the offender is responsible for a deliberate act which took the life of another person and which but for the abnormality of mind would bear the character of murder". ( emphasis added )
24 Those remarks are much in point in cases of provocation where "the hypothesis … is that the offender is responsible for a deliberate act which took the life of another person and which but for the [provocation] would bear the character of murder."
25 Later in the same judgment the Chief Justice observed that "notwithstanding the diminished responsibility, it was necessary to impose a sentence which reflected the objective seriousness of the case, and, in particular, the circumstance that what was involved was the felonious taking of human life with intent to kill or cause grievous bodily harm". Again, the proposition is applicable to the present case if the words "diminished responsibility" be replaced by the word "provocation". The case is a salutary reminder of the significance in determining the gravity of an offence of manslaughter, of the fact that the act causing death was accompanied by murderous intent.
26 In Hill, referred to in the judgment in Blacklidge, Street CJ adverted to the difficulty of sentencing for manslaughter, the need to recognise that the felonious taking of human life is one of the most dreadful crimes in the criminal calendar, but on the other hand, the willingness of the courts to recognise "factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life". The Chief Justice continued -
"The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being metered out to the guilty party.
"In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interests of society in protecting itself and its members from criminal activity, amounting, as in the present case, to the taking of a life."
27 In a typically helpful analysis of the difficulties attending the task of sentencing for manslaughter arising by reason of provocation, Hunt CJ at CL in Regina v Alexander (1995) 78 ACrimR 141 at 144 identified "three particular matters which have been taken into account in provocation/manslaughter cases", namely:
"1. The degree of provocation offered (or, alternatively, the extent of the loss of self control suffered), which when great has the tendency of reducing the objective gravity of the offence;
2. The time between the provocation (whether isolated or cumulative in its effect), and the loss of self control, which when short also has the tendency of reducing the objective gravity of the offence; and
3. The degree or violence or aggression displayed by the prisoner, which when excessive has the tendency of increasing the objective gravity of the offence."
28 Commenting upon those propositions, Hunt CJ at CL continued:
"The second of those matters appears to have remained relevant notwithstanding the change in the law of this State in 1982 whereby the common law requirement that the act causing death must be one done suddenly was deleted. The courts must of course recognise that a long course of conduct by the deceased may often be far more provocative than an isolated incident, as indeed was recognised at common law. Where that provocative course of conduct continues up to the point of the prisoner's loss of self control, there is no delay at all involved; when the conduct has ceased, and there is a significant delay after the provocation has ceased, whether isolated or cumulative in its effect) and before the prisoner's loss of self control, the courts are likely to conclude that the degree of provocation offered was not great. In that sense, the second of those matters may be seen as no more than as some evidence by which the degree of provocation (the first of those matters) may be judged."
29 I propose briefly to address each of these three matters in turn but it is convenient before doing so to discuss what the evidence reveals as to the offender's background and his psychological state, because not only are such subjective matters to be taken into account as part of the mix of factors to be considered in arriving at the appropriate sentence, but also they have specific relevance to the assessment of the degree of provocation to which the offender was subjected.
30 The accused was born on 30 September 1976. His parents were not married but his father took an interest in the boy and saw him regularly. When the offender was two years old his mother moved with him to live independently of her own family, and then after about six months she moved in with another man whom she subsequently married. That marriage broke up when the offender was about eight years of age. Even before that the boy had displayed behavioural problems which caused his mother and step-father to seek the advice of a consultant psychologist, and soon after the break up of the marriage, the child was seen by a consultant psychiatrist. There was a history of at least unkind treatment of the boy by his step-father, possibly worse. The psychiatrist diagnosed a severe personality disorder based on early depression; and was of the opinion that he had been damaged by "his identification with a violent disorganised step-father". She prescribed some form of psychotherapy which I gather proceeded at least for a little while. Understandably, his progress at school was severely impeded by his behavioural problems, although it improved when Ritalin was prescribed for him in 1985. His consultant paediatrician observed that "his school performance and behaviour certainly has improved. The teachers are very impressed with his response, and indeed he is now getting merit awards. This of course will do wonders for his self image. However, of course, it is not surprising that he occasionally erupts out to his old ways of being difficult and physically violent to his younger siblings and mother. I can see no easy solution for this".
31 A year later he was seen at a paediatric neurological clinic, apparently because of his mother's concern about his continuing difficulties at school - aggressive, anti-social and very disruptive behaviour, distractability and restlessness in class. The conclusion was that he was of average intellectual potential but with a learning disability with delay in his reading and spelling, and had also clinical features of an attention deficit disorder. Recommendations for treatment were made but the evidence does not disclose that anything in fact was done. At the age of about 12 he was sent to Boys Town for about two years because no other school would accept him.
32 His tendency to anti-social behaviour manifested itself in a series of relatively minor offences dealt with in the Children's Court usually by way of control orders and, from late 1994 in the Local Courts. As well, his aggressive tendencies manifested themselves in a number of offences of violence. At the age of 16 he was dealt with in Port Kembla Children's Court for an offence of assault police. A similar offence committed on 26 September 1994 was dealt with in the Local Court. On 1 December 1994 he committed a number of offences while travelling on a train, and those included an assault upon a transit police officer who was attempting to arrest him. Fourteen months later he was spoken to by police who found him in possession of goods believed to be stolen, and again he assaulted the arresting officers. Twenty-one months passed before he was again in trouble, namely on 29 November 1997 when he was charged with an assault in the street in the town of Young, following which he was violent and aggressive towards arresting police.
33 It appears that each of those offences, at least from 1994 onwards occurred at a time when the offender was affected to a larger or smaller degree by alcohol, as was the case on the night of the killing of Samuel Dyball. It is clear from some of the offender's answers during the course of a police interview that he was well aware of his tendency to aggressive behaviour after imbibing alcohol. In some cases, intoxication may be seen to be a mitigating factor: but that cannot be so in the present case because of the offender's clear knowledge of the effect of liquor upon him. On the other hand, it may sometimes be an aggravating factor. Particularly is that so where an offender has deliberately charged himself with alcohol in order to give himself courage to embark upon some planned course of criminal conduct. That is not the case here. I am of the view in this matter that the prisoner's intoxication, while clearly a significant factor in producing his criminal conduct, ought not to be regarded in itself either as mitigating or aggravating the gravity of his offence.
34 In between periods of detention, the offender lived with his mother in Wollongong. She moved to Harden in about 1997 and he followed her there about six months later. He had few friends in that town and virtually no social life because, as his mother said in evidence, social life for young people in Harden centres around the hotels and her son rarely drinks (for reasons already adverted to). His education did not go beyond year eight and he has no formal qualifications for any sort of employment. He has worked for short periods and casually, in an asparagus factory and at the Harden abattoir, but my impression is that he has been more often unemployed than employed.
35 Doctor Bruce Westmore saw the offender on 8 September 2000 and again on 6 December, after the jury's verdict. He noted the history of early behavioural disturbances. He accepted that there was a conduct disorder but was of the opinion that the application of more modern diagnostic standards would not justify diagnosis of a personality disorder in an eight year old child. He accepted, however, that the offender has some personality difficulties, "possibly amounting to a personality disorder with some anti-social traits". Even now, he "would not conclude … that he has an anti-social personality disorder". In his opinion the offender has established aggressive traits (demonstrated by his past history of violence, albeit not gross violence). It was his opinion that his history of violence, including the major violence involved in the present episode, reflects the offender's response to alcohol superimposed upon his underlying aggressive personality. He is at risk of further offending if he becomes intoxicated. He thought there was a significant difference between the circumstances of the present matter and the earlier episodes on his criminal record. On the earlier occasions, the offender seemed to have responded with aggression and violence when authorities intervened in respect of other alcohol-related misbehaviour. The present case he saw as more "situationally specific". Doctor Westmore said, on the question of future dangerousness, "in predicting future dangerousness previous aggression is thought to be a useful indicator. The more environmentally or situationally specific an act of aggression is, provided this aggression occurs on a background of a generally non-aggressive lifestyle, then future aggression is probably unlikely".
36 Before being acquainted with the offender's previous record, Doctor Westmore was prepared to say, "I do not think there is a history of extended or repeated aggression in this man's adult life. That would suggest, despite his personality difficulties, the risk of future aggression is probably low. To that extent his prognosis from a reoffending point of view is probably quite good". However, when he was advised of the offender's record and the circumstances of the several offences disclosed therein, he acknowledged that that reflected a higher level of underlying aggression than he had previously been aware of, and led him to be less optimistic about the question of reoffending.
37 His attention was drawn to the account given by the offender to his aunt within half an hour or so after the stabbing, and as to that, Dr Westmore said that it was a matter of concern, because it manifested anger as a major component of his then mental state, and an absence of immediate remorse or regret. Its significance might, however, be diminished if it were accepted that the offender was in a state of fear. He accepted that there were perhaps three sources of "fear" - fear of retaliation from the victim's friends; fear of legal consequences of his behaviour; and also perhaps a state of fear which was a continuation of his emotional state at the time of the stabbing incident.
38 The prisoner's aunt, Julie Ann Brown described the offender as agitated and unsteady on his feet when he came to her home, but he said nothing to her to suggest that he was in fear, unless it be the words "I'm in trouble" which would seem to indicate that if he had any fear at that stage, it was more than likely fear of the consequences of what he had done. The prisoner's account of the episode to police includes no reference to his being in fear except and until in answer to question 234:
Q. "Do you recall at … the particular time that you were fearful of these people?"
A. "Yes."