Regina v Leeanne Terese Trevenna

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

REMARKS ON SENTENCE 1 HIS HONOUR: Upon arraignment, Leeanne Trevenna (the offender) pleaded not guilty to having murdered Terry Robert O'Brien on 10 July 2000 at Sutherland. A jury was duly empanelled to hear her trial. After two days of evidence and following discussions between Mr Ramage QC, who appeared on her behalf, and the Crown, she was re-arraigned. She then pleaded not guilty to murder but guilty to manslaughter. The Crown Prosecutor, Mr Newport QC, announced that he accepted that plea in full satisfaction of the indictment. In accordance with the procedure laid down in s 91 of the Criminal Procedure Act 1986 (NSW), I accepted the plea and then discharged the jury. 2 This matter was originally listed for trial before me last year. At that stage the offender was to stand trial with Nicole Ollerenshaw and her former de facto husband Richard Bauer, each of whom was charged with being an accessory after the fact to murder as well as an offence contrary to s 316 of the Crimes Act 1900. The Crown however informed me that a decision had been made that there would be no further proceedings taken in respect of Ms Ollerenshaw. As I understand it, Mr Bauer is to be tried at a later date. 3 In those circumstances it became unnecessary for me to rule upon an application, which had been foreshadowed, that the offender be tried separately from her then co-accused. I did however rule, prior to the jury being empanelled, on a number of issues, including matters pertaining to the production of documents upon subpoena and claims of public interest immunity, and upon questions of admissibility of evidence. Some of my rulings upon the admissibility of evidence were in the offender's favour. As it happened, the trial was unable to proceed at that time because of an injury sustained by Mr Ramage in the course of an accident. The further hearing of the matter began before me earlier this month. 4 A post-mortem examination revealed that Mr O'Brien had died as a result of a gunshot wound to the back of his head in the premises which he rented at 10 Hornby Avenue, Sutherland with the offender and her son, who was then aged 7. On occasions the offender's son stayed with his father, Richard Bauer. Although Mr O'Brien was shot on Monday 10 July 2000 it was not until Thursday 13 July that his body was discovered by his friends Craig Dunphy and Ken Paton. All three men were patrons of a local hotel. Mr Dunphy also assisted the deceased in his brick cleaning business. Indeed Mr Dunphy had anticipated working with, and being picked up by the deceased for that purpose, on the days following 10 July when he had last seen him alive. The deceased did not however contact him or arrive to pick him up. Having ascertained on the Thursday that no-one appeared to be aware of the deceased's whereabouts, and having tried unsuccessfully to contact him by telephone, Mr Dunphy and Mr Paton went around to the deceased's premises. They knocked at the front door and when they received no answer they went to the rear of the premises. They opened the back door which was unlocked. They did not go inside the house but were able to see from the doorway the deceased's body lying inside the premises in the area of the dining room. The emergency '000' number was rung and police and ambulance officers attended the scene. 5 Police officers trained in crime scene examinations arrived and conducted various tests. They also created sketch plans and took photographs. That material was in evidence before the jury. In short, it revealed that there were no signs of forced entry to the premises. A cricket bat, which upon presumptive testing was found to possibly have blood upon it, was located near the deceased's body. There was extensive blood splatter upon the walls and ceiling in the area adjacent to where the deceased was lying. That included splatter upon the cover of the ironing board as well as upon items which were also on the ironing board. Significantly however no blood splatter was located upon the deceased's mobile phone which was also sitting upon the ironing board. That discovery suggested that the phone had been placed there after the deceased had been shot. The photographs also revealed that there was a considerable amount of blood and brain matter lying adjacent to the deceased's head. 6 The offender was interviewed by police on the day on which the deceased's body was discovered. She informed them that she had not stayed at the premises over the preceding few days. She said that she had been staying with her friends, Ms Ollerenshaw and Kevin Stokes. She denied any knowledge of, or involvement in Mr O'Brien's death, although she did acknowledge that she had returned to the deceased's premises on the evening of 10 July to collect some clothes. She said that the deceased, who was in his pyjamas at the time, had been "horrible" to her. 7 Police thereafter embarked upon a very thorough investigation of the circumstances surrounding Mr O'Brien's death. Inevitably suspicion fell upon the offender but other lines of enquiry, it would seem, were also pursued. The offender was re-interviewed by police on 16 November 2000. She acknowledged that she and the deceased had been arguing and fighting in the period prior to his death. She said that because of the problems she was encountering with the deceased, she had stayed during the weekend preceding his death with a friend named John Tillhon. Phone records indicate that the deceased tried persistently during the course of that weekend to contact the offender. The evidence also reveals that she tried to avoid him. To that end, she left her mobile phone with Ms Ollerenshaw and Mr Stokes with instructions that she was only to be contacted in the case of an emergency involving her son. She was informed by them of the deceased's repeated attempts to contact her. Her endeavours to avoid the deceased only served to further infuriate him and he threatened both Mr Stokes and Mr Tillhon when he was unable to make direct contact with the offender. 8 In her second interview the offender continued to deny any involvement in the offence. She was however made aware, during the course of the interview, that police had discovered her fingerprints, but not the deceased's, upon the deceased's mobile phone that was located, as I have said, on the ironing board in the dining room. 9 Two days later on 18 November, the contents of a conversation between the offender and Richard Bauer, which took place in his premises at Kirrawee into which the offender had by then moved, was captured pursuant to a lawfully installed listening device. It was capable of constituting powerful evidence against the offender because in it the offender revealed her knowledge of a number of matters that she could only have acquired by having been present at the crime scene herself. For example, she said in the conversation that she had "never [before] seen such a mass of fresh blood and brains". She and Mr Bauer also discussed at considerable length how it was that her fingerprints, and not the deceased's, were on the mobile phone. The explanation apparently lay in the fact that she had removed the mobile phone from the kitchen area and placed it on the ironing board after the killing. She also referred to the fact that she and Mr Stokes had returned to the scene in an endeavour to remove from it her fingerprints. As to that matter she said that she: "Fully, fully wiped everything….Everything's been cleaned up… how could I explain my fingerprint on the phone though that's… bad." 10 There are also references by the offender which appear on their face (although I accept that there remains some dispute about this issue) to constitute a ready concession on her part that she actually discharged the gun. She said, inter alia: I felt the fucking smoke of the gun, just the gun smoke was like something worse than on fire cracker night. 11 The offender was arrested and charged on 7 December 2000. She exercised her right at that time not to be interviewed further in respect of the matter. She has been in continuous custody ever since. 12 In order to prove its case, the Crown was able to rely upon the contents of the conversation between the offender and Mr Bauer on 18 November 2000, but it also had available to it evidence which it anticipated would be given by the offender's friends, Ms Ollerenshaw and Ms Kendell, that she had, within hours of the killing, admitted to each of them that she had shot the deceased. There was also the anticipated evidence of Ms Ollerenshaw that the offender had returned to her premises in the early hours of the morning of 11 July with what appeared to be blood in her hair and on her forehead. This revelation caused Ms Ollerenshaw to want to get out of the house. For that purpose she called a taxi using the offender's mobile phone. Although a taxi cab responded to the call, Ms Ollerenshaw did not wait for it to arrive although it may be inferred that Mr Stokes (and possibly the offender) did enter the cab and travel in it to the vicinity of the deceased's premises early on that morning. The offender also told Ms Kendell that she had returned to the scene in order to remove her fingerprints. 13 There was also evidence which the Crown anticipated would reveal that the offender had made enquiries of her friend, Mr Tillhon, if he knew anyone who would be able to "fix someone up". Ms Ollerenshaw informed police that the offender had also expressed to her a desire to kill the deceased and on another occasion had expressed a desire to have someone else do so on her behalf. Even if I were to accept that these remarks were made, and that they were intended by the offender to carry with them the inference for which the Crown would have contended at a trial, the Crown concedes, in view of the plea of guilty, that this evidence is of little, if any, present significance. 14 Nevertheless because Ms Kendell and Ms Ollerenshaw have not been required to give evidence against the offender their overall reliability has not been put to the test. This is not without significance because each of them had on more than one occasion initially denied having any knowledge of the circumstances surrounding Mr O'Brien's death. Moreover each was vulnerable to an attack upon their credit as they had each been arrested in respect of these matters. As I have already indicated, Ms Ollerenshaw was also charged and indeed it was only subsequent to her being informed that she would be charged that she first implicated the offender in this offence. Mr Tillhon gave evidence at the committal hearing and it would appear from the material with which I have been supplied that he was anything but a satisfactory witness. 15 The centrepiece of the crown case remained, however, the listening device material. I did not hear it for myself but I was informed that it was necessary to have the recording of it enhanced so that it could be heard. Accordingly, it may be that there was a basis upon which the process whereby the recording was enhanced could have been the subject of challenge. Ultimately of course it would have been a matter for the jury as to whether it could discern from the recording the words which the Crown attributed to the offender. 16 As a result of the discussions between the parties to which I earlier referred, the offender produced a statement which was in the nature of a formal admission. In it she set out in some detail the circumstances in which she shot and killed the deceased. The Crown accepted the contents of that document as constituting a proper basis upon which it could accept a plea to manslaughter on the basis of excessive use of force in self-defence within the meaning of s 421 of the Crimes Act (NSW). He did so in light of other material in the Crown case, and in particular in view of admissions which the offender had earlier made to Ms Kendell. For example, the offender told Ms Kendell that she had fought with the deceased on the night of his death and that during the course of a struggle he had choked or strangled her. She told Ms Kendell that she had managed to get him off her before shooting him. 17 The relevant parts of that statement are in the following terms: When I got to the house, Terry was already in his pyjamas and in the lounge room watching TV. He'd eaten already. To begin with he was just a bit shirty, but still civil. After a short time, he started into me about taking the car and not letting him know where I was. Then he started on about me having given the mobile phone to Nicole and Kevin. He said he knew why I'd done it, so he couldn't track me down. At some stage, we shifted from the lounge room out to the dining area. Then he said that I'd been with John Tillhon and I must have been screwing him, and getting drugs from him. I denied that I'd slept with John, but he ignored my denials and went on about it, he seemed to get more angry the more I denied it. He just didn't listen and eventually I said 'I don't have to put up with this shit, I'm going, I'm not staying anyway.' He quietened down a bit and said 'why aren't you staying?' I said 'cause I want to be with [my son].' He said 'why isn't he here. We'll go around and pick him up.' I said 'he won't come.' He said 'why not?' and I said 'you know why, what have you done to him its your fault what the bloody hell have you done to him.' He didn't say anything. Then I said 'have you done like what you did to Michelle. I've heard all about you.' Terry got really enraged. He said "You're a fucking bitch, I'm going to kill you." Terry grabbed me and threw me, I landed on the carpet near the bed. We struggled. I tried to hit him, but he grabbed me by the throat first with one hand and then with two. I tried to push his face away. He said "I'll kill you, you bitch." I didn't know how long this was. I couldn't talk, I couldn't breath, and I thought I was going to die. I think I passed out, maybe not, but somehow I was away from him. I think I may have kneed him in the balls. I said 'you nearly killed me.' He said: "I'm gunna fucking kill you". I know other words were spoken, but I can't remember everything that was said. We were yelling at each other. Terry moved away from me, I was close to the bunk where I knew he had a shot gun, he'd had it for some time, under the bottom bunk. He told me that he'd got the gun because he was concerned that someone may try to kill him because he owed a lot of money. He'd shown it to me. I thought it would be loaded. I reached in and got it. I stood up and took a couple paces. Terry was saying: I'll smash your face in so no one will ever know you. You will never see [your son] again." I saw him facing away from me with the cricket bat raised in his hand. It had been on the table. I thought he'd bash me really badly or probably kill me. I moved a pace or so forward and shot him, after this, I took off. In the early hours of Tuesday, I came back to the premises to try and remove any evidence that I was there Monday night. Afterwards, I threw the gun and all the clothes I'd been wearing away in a dumpster in front of some units in Sutherland. 18 The evidence revealed that the offender had had little sleep during the period immediately preceding the incident giving rise to Mr O'Brien's death and that she was also under the influence of amphetamines at the time. 19 In order to provide the context in which the present offence occurred and also to understand why it occurred it is necessary to have regard to other evidence which bore upon the relationship between the offender and the deceased. In doing so I do not intend to in any way cast judgment upon the deceased's behaviour or lifestyle. That evidence clearly demonstrated that the relationship had deteriorated in the period leading up to Mr O'Brien's death. Although the offender lived with the deceased and assisted him in his business there was no evidence that she was romantically involved with him. Indeed they occupied separate bedrooms. Nevertheless the deceased seems to have been infatuated with the offender and he certainly tried in various ways to control her life. 20 The evidence also indicates that the deceased was a large and intimidating man. He had, for example, a criminal record which contained various convictions for assault, assault occasioning actual bodily harm and contraventions of apprehended violence orders. He also had a history of inflicting violence upon women and particularly those with whom he was closely associated. For example, on one occasion he kicked a female companion down some stairs occasioning considerable injuries to her. 21 His ex-wife, Lynette O'Brien, provided a statement in which she described their relationship as volatile. She said that she was frequently assaulted by him and described her ex-husband as "very controlling". Various other witnesses used similar language to describe his behaviour. The offender had also told Ms Kendell that the deceased was "trying to control her life". Ms O'Brien had also observed the deceased to behave violently towards other women, including the offender. She believed that the offender was in fear of him. Her daughter, Tenille, provided a statement to similar effect. She related a particular incident which revealed that the offender was fearful of being left alone with the deceased. A neighbour, Dianne Lucas, who lived opposite the deceased's premises heard arguments on various occasions between the offender and the deceased. On one occasion she witnessed an argument which concerned the offender's son wanting to live with his father and not with his mother at the deceased's premises. There was other evidence which indicated that the deceased had assaulted the offender and that she was afraid of him 22 I have been provided with a statement from Julie Erdman. She related an incident in which she had gone one evening with the offender to her house in Sutherland. The offender was giving Ms Erdman a massage in her bedroom. The deceased came into the room and angrily said "I just hate dirty, stinking, fucking lesbians". Ms Erdman concluded from this and other behaviour that the deceased had a "crush" on the offender and was jealous of their relationship. This behaviour is indicative of the sort of jealousy that the deceased displayed in respect of the offender. He had also displayed similar patterns of behaviour in relation to other women who had shared his house. 23 There was a considerable body of evidence to the effect that the offender believed that the deceased may have interfered with her son, and that that was why he did not want to stay with her during the school holidays but wanted rather to remain with his father. This suspicion, which the offender expressed to various people, seems to have been reinforced by information that she had received (which information may well have had a reasonable foundation) that the deceased had previously interfered with his step-daughter. All this clearly contributed to the deterioration in the relationship between the offender and the deceased. As I have said, she spent the weekend before the shooting with Mr Tillhon. She expressed to him her concerns that the deceased may have interfered with her son. At one stage she referred to the deceased as a "rock spider". There is evidence before me that her son had no difficulty being with the offender when he and she were staying somewhere other than the deceased's place. Although the offender's belief as to that state of affairs is relevant in these proceedings, each of the parties have stressed that there is no evidence whatsoever before the Court that there had in fact been any such interference. I accept that to be the case. I might also add that Mr Tillhon was sufficiently concerned about the offender's safety during the course of that weekend to speak to the deceased on the telephone in an endeavour to gain reassurance that the offender would not be at risk if she returned to his house. 24 There is an extensive body of evidence before me which reveals that the deceased was an active drug dealer and that he in particular sold cannabis and speed. Indeed paraphernalia commonly associated with the drug scene was located by police at his house. The offender appears to have assisted him in that task. Those activities inevitably led to other problems. The deceased was also in financial difficulties. It would seem that the deceased kept a baseball bat in the house in order that he might protect himself. There was also evidence which indicated that the deceased had at some stage had possession of a loaded gun. Presumably his decision to do so was related to his drug dealing activities. That material, it was accepted by the Crown, went to the likelihood that the deceased had had the shotgun, to which the offender made reference in her statement, at his premises on the night of his death. 25 Absent exceptional circumstances, the acceptance of a plea in full discharge of an indictment is a decision which is solely within the province of the Crown. Nevertheless it is perfectly understandable that the Crown was prepared to accept a plea to manslaughter in all the circumstances of this case because it would have been extremely difficult for it to have proved beyond reasonable doubt that the offender did not personally believe that it was necessary for her to do what she did in order to defend herself. 26 I have received a victim impact statement from the deceased's estranged wife. It is written on behalf of their three children. In it they express understandable feelings of grief, anger and resentment as a result of Mr O'Brien's death. They also detail the impact that it has had upon their lives. I have also received a victim impact statement from the deceased's mother. Her grief, anguish and despair are also palpable, and, again, understandable. I am aware of course that the effect of his death upon relatives is not, for present purposes, a relevant consideration. See R v Previtera (1997) 94 A Crim R 76. Nevertheless the court expresses its profound sympathy to all those who have suffered and who continue to suffer by reason of his death. 27 The offender, who was born on 30 October 1967, has a minor criminal record. In September 1988 she was placed on a bond in the Local Court for offences of stealing a valuable security and obtaining money by deception and was fined in respect of two offences of receiving. The following month she was placed on a bond for a receiving offence. In August 1998, upon her appeal against severity to the District Court, she was placed upon a further bond in respect of two counts of possessing a prohibited drug and an offence of having goods in her custody reasonably suspected of having being stolen. In April 2000 she was again placed on a bond in the Local Court in respect of an offence of common assault. Her criminal record, whilst not entirely clear, would not assume any real significance in the present proceedings but for the final matter recorded against her. It is however a matter of aggravation that she was subject to a bond at the time of the commission of the present offence. Nevertheless I have little hesitation in concluding that her conduct on the occasion in question is totally out of character from her normal behaviour. 28 I have been provided with a statement from the offender's mother in which she sets out the relevant aspects of her daughter's background. The offender's natural father and her mother separated before she was born. Subsequently the offender's mother married Peter Trevenna who already had three children. That relationship broke up when the offender's mother asked Mr Trevenna to leave following complaints from the offender that her step-father had been sexually interfering with her. I accept that that experience in her childhood would have made the offender particularly sensitive to the possibility that the same type of conduct was being directed towards her own child. That would certainly serve, in part, to explain her reaction during the course of the incident that led to Mr O'Brien's death. 29 At least up until the end of primary school, the offender had apparently been progressing well at school. At around that time, her natural father re-emerged on the scene having spent about 14 years in gaol for murder. He sought out his children. His influence upon them was not a positive one. 30 The offender thereafter left school at the age of 14. It appears that she has acquired few vocational or educational skills. She moved in with Richard Bauer when she was about 16. He is the father of her two children. It appears that she separated from him only comparatively shortly before the death of Mr O'Brien. The separation appears to have caused her considerable distress. It also meant that she had to find somewhere to live and it was in those circumstances that she moved in with the deceased. The offender's mother nevertheless did not approve of the offender's relationship with Mr Bauer because of his involvement with drugs. In any event since the age of about 20, the offender has had a dependency upon drugs and has been an active participant in the drug milieu. 31 The offender has told her mother that she is "deeply saddened and sorry" about Mr O'Brien's death. She is finding the separation from her children very difficult and is concerned that they may be subjected to harassment because of her crime. 32 The offender has spent her time productively whilst she has been in custody. She has successfully completed a number of courses. Just as importantly, she has managed to wean herself off methadone. This is an admirable achievement in view of her long standing addiction to heroin. Furthermore her mother is entitled, in those circumstances, to be optimistic that her daughter is committed to removing herself from the drug scene upon her return to the community. 33 The offender has been in almost continuous employment in the gaol nursery since she has been in custody. She is hopeful of obtaining employment as a horticulturalist and/or tree surgeon upon her release. 34 I remind myself that I must proceed to sentence the offender against the background of the relevant statutory framework and in accordance with the principles enunciated in the relevant authorities. The plea of guilty was entered on 22 May 2003. In those circumstances I must have regard to the purposes of sentencing which are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. That section, which is in the following terms, commenced operation on 1 February 2003: 3A . The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 35 I must also, in determining the appropriate sentence, have regard to the aggravating and mitigating factors which are set out in s 21A of that Act. It is apparent from the concluding words of s 21A(1) that the list is not exhaustive. As long as I take into account those factors that are relevant and known it is not necessary, as I understand the situation, to deal seriatim with each matter which is identified. Suffice it to say that I have had regard to the statutory requirements to which I have just referred and given due weight to the matters which I regard as being of particular relevance. 36 It is also necessary to have regard to the maximum penalty which is prescribed by the legislature. In the case of manslaughter it is imprisonment for 25 years. See s 24 of the Crimes Act 1900. 37 Furthermore I must have regard to the particular principles that inform the sentencing task in a case such as the present. The starting point must be the fact that a human life has been taken. The community expects that human life will be protected by the law and that those who take it will be punished. See R v Troja (CCA unreported 16 July 1991 at 2); R v McDonald (CCA unreported 12 December 1995). In R v Hill (1980) 3 A Crim R 397, Street CJ said: It has been said that manslaughter, perhaps, beyond any other crime is protean. The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act, 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. 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 meted 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 interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life. (at 401) 38 There are a number of matters upon which the offender is entitled to rely in order to mitigate what would be the otherwise appropriate penalty. See s 21A(3) of the Crimes (Sentencing Procedure) Act 1999. Prominent amongst those considerations is her plea of guilty. See s 22 of the Crimes (Sentencing Procedure) Act 1999; R v Thomson & Houlton (2000) 49 NSWLR 383. Although it was not entered at the outset of the trial, it was entered at an early stage of what was anticipated to be a four week case. None of the contentious witnesses had been called in the Crown case at the time at which the offender entered her plea. Moreover, approximately 40 witnesses remained to be called in the Crown case. Friends of the offender as well as close relatives of the deceased were thus spared the ordeal of having to give evidence. To that extent at least the offender has, to adopt the language employed by the High Court in R v Cameron (2002) 187 ALR 65, "facilitated the course of justice". It is common ground that the strength of the Crown case is irrelevant to an assessment of the value of this aspect of the plea of guilty. It is relevant however to the question of remorse and contrition. 39 Although the plea could not in any sense be described as being timely, the offender is nevertheless entitled to an appropriate discount for that aspect of her plea of guilty. In all the circumstances I will allow a discount that is at or towards the bottom of the range of 10% - 25% identified in Thomson & Houlton. 40 I have already referred to the evidence that the offender expressed remorse to her mother. I take that into account. I accept that, notwithstanding the difficulties which confronted the Crown in respect of the civilian witnesses upon which it relied, the conversation of 18 November 2000 which was intercepted together with other evidence, provided powerful evidence that Mr O'Brien met his death at the hands of the offender. It may be accepted however that a jury may not have been persuaded in all the circumstances of the case that the Crown had negatived self-defence and that it may accordingly have acquitted the offender altogether. In those circumstances some further discount should be allowed on account of the offender's plea. 41 I am prepared to find that the offence was not planned and that the fatal outcome was the result of a spontaneous reaction by the offender to the circumstances in which she found herself. The circumstances themselves suggest a measure of provocation although not in any sense that would meet the statutory requirement in s 23 of the Crimes Act. The offence, as I have observed, took place against the background of a volatile personal relationship in which the deceased was in an agitated state by reason of not being able to contact the offender. No doubt the deceased was also jealous by reason of the offender's contact over the weekend with Mr Tillhon, a reaction which the offender may well have anticipated. 42 Clearly the plea recognises that the offender's conduct was not a reasonable response in all the circumstances notwithstanding the fact that the offender believed that the conduct was necessary in order to defend herself. That being so, it is apt to recall the remarks of Greg James J in R v Nguyen [2002] NSWSC 536 in which His Honour said that the "exigencies of the moment were such that the offender simply resorted to what protective weapon was at hand". 43 I have no reason, in view of the evidence before me, to conclude that the offender's prospects of rehabilitation are other than positive. Indeed the Crown did not make a submission to the contrary. I am also prepared to find that there are "special circumstances" within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act and again the Crown did not submit that it was not open to me to do so. I do so primarily because this is her first term of imprisonment and it must of necessity be one of considerable length. In those circumstances she will need, and indeed will benefit from, an extended period of supervision upon her release from custody. An important component of that supervision will be assistance of a kind that enables the offender to avoid relapsing into drug abuse. 44 It is understandable that there are few authorities available which could be said to bear comparability to the present case because s 421 of the Crimes Act has only been in operation since last year. There are two such cases of which I have been made aware. In Nguyen the offender pleaded guilty to manslaughter on the basis of the excessive use of force in self-defence and to a count of malicious wounding with intent to do grievous bodily harm to another person as well as two further charges of maliciously discharging a pistol to do grievous bodily harm. In short, that offender was at the premises of a friend when a home invasion took place. A number of armed intruders burst into the premises. The offender discharged two shots from a handgun which he apparently had with him. The first killed one intruder and the second struck a second person. The robbers then ran from the premises pursued by the offender who then fired two further shots. As a result two further persons were injured although only minor wounds were occasioned to them. That offender had a prior criminal record and was on parole at the time in respect of an offence of armed robbery with wounding. His plea of guilty was assessed as entitling the offender to a discount of 25% from the otherwise appropriate sentence. Greg James J imposed an overall effective sentence of 7 years' imprisonment with a non-parole period of 3½ years. 45 In R v Cioban [2002] NSWSC 972, the offender was sentenced by Studdert J to a term of 8 years imprisonment with a non-parole period of 5 years after the jury convicted him of manslaughter at his trial for murder. The deceased in that case died from a gunshot wound following an altercation in a hotel in the Kings Cross area between a group of men including the deceased, and the offender and his companion. The altercation continued along Darlinghurst Road for some period of time. Although the deceased was the initial aggressor he was unarmed. That offender had only a minor record and had some favourable subjective circumstances. He was however also convicted of a further offence of maliciously discharging a firearm with intent to do grievous bodily harm in respect of which offence he received a partially cumulative sentence. That offence occurred at a point in time prior to the infliction of the fatal shot. These offences of course occurred in a public place. 46 Each case of course turns on its own particular facts. The circumstances in Nguyen were highly unusual. Having said that, the present offender unlike those in Nguyen and Cioban stands for sentence in respect of only one offence. As I understand it, the Crown submits that when all relevant factors are considered, a sentence of the same duration as that which was imposed in Cioban for the offence of manslaughter would not be inappropriate. 47 Notwithstanding the offender's favourable subjective matters and the other features of the case to which I have referred, it is necessary to impose a sentence which properly reflects the objective gravity of the offence and which gives effect to the various matters referred to in s 3A of the Crimes (Sentencing Procedure) Act. The case involves the use of a firearm which has resulted in the tragic loss of human life. Nothing less than a substantial custodial sentence thus can be countenanced.

Sentence 48 For the crime of manslaughter I sentence the offender to a term of seven and a half years imprisonment to commence on 7 December 2000 and to expire on 6 June 2008 with a non-parole period of four and a half years to commence on 7 December 2000. The first date upon which the offender is eligible for release to parole is 6 June 2005. **********

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