1 GROVE J: The respondent was tried before Hidden J and a jury upon an indictment charging him with murder. The victim was his mother. The trial commenced on 28 October 2002 and on 12 November 2002 the jury returned a verdict of not guilty of murder but guilty of manslaughter. The only basis upon which the jury were directed that a verdict of guilty of manslaughter was available was if the Crown failed to satisfy them that the respondent, at the time that he killed, possessed a requisite intention giving rise to guilt of murder. In his remarks on sentence the learned judge stated, accurately, that therefore the respondent "stands for sentence on the basis that he killed his mother by an attack which was both unlawful and dangerous, but without an intention to kill or inflict grievous bodily harm or a reckless indifference to human life".
2 For the crime of manslaughter so committed the respondent was sentenced to imprisonment for nine years with a non-parole period of six years and six months.
3 Before the Court is a Crown appeal asserting the inadequacy of that sentence.
4 The respondent did not give evidence at his trial or in the sentencing proceedings. There was evidence however that he had claimed to have come home in the early morning and found his mother severely beaten. Some time later he brought her in her declining, and ultimately fatal, condition to the Nepean District Hospital. He also had made claims that both he and his mother had been harassed by members of "bikie" gangs. He had given evidence some years beforehand against such persons in connection with the murder of a friend of his. On the premise that the respondent did not attack his mother, a hypothesis was opened for argument that the culprit was one such bikie.
5 Since conviction the respondent has not acknowledged his guilt and he has reiterated his claims of innocence as well as the history of harassment by bikie gangs. He has pointed to one individual in particular. One occasion of reiteration was to Dr Allnutt a psychiatrist, who saw him two times, the second time for the express purpose of preparing a report for use in the sentencing proceedings.
6 His Honour referred to the critical facts pertinent to the killing in summary form:
"Some time in the morning of 21 February 2000 the offender attacked his mother, beating her severely. Exactly how her injuries were inflicted is unclear. However, on post mortem examination extensive bruising was observed to the deceased's head, neck, torso and limbs. More importantly, there were fractures to her sternum and most of her ribs, causing a flail segment which inhibited her breathing. How long she might have remained conscious after the attack is also unclear, but for however long it was she would have been in great pain."
7 In submission to this Court the Crown elaborated upon those facts suggesting, at least by inference, that the summary inadequately describes what was "a vicious assault upon an elderly woman". She was seventy years of age. On arrival at the hospital the duty clinical nurse at reception noted extensive bruising down the victim's right arm and further bruising on her left arm, scattered bruising on both legs and small bruises at the throat and neck. The lastmentioned, she described as "fingertip bruising". Forensic testing at the house detected the presence of blood in an entry way between the laundry and kitchen, on various items in the lounge room and on top of the bed in the main bedroom.
8 Dr Ellis, a pathologist who performed the post mortem examination described extensive external and internal injuries. The Crown written submission presented this detail:
"There were 34 areas of external injuries, including bruising above the eyes, on the forehead and on the left cheek, abrasions on nose, bruising to the neck, on the skin underneath the scalp and a 'fairly large bruise' on the upper chest. There was a line of smaller bruises extending to the left breast. There were bruises on the abdomen and 'on the back of the trunk there is a very large area of red and blue bruising covering the upper part of the left buttock which extends on to the lower part of the left side of the back'. There were more bruises on the back of the right forearm, on the left upper arm and left forearm, on the back of the right hand and on both legs, right knee and right foot.
Internal examination revealed that the deceased's ribs on the left side 1-7 inclusive were broken at the front, ribs 2, 3 and 4 broken at two places, and ribs 9-11 were broken at the back. On the right side, ribs 3-8 were broken at the front and ribs 8-11 to (sic) were broken at the back. There were 'sharp angles which could actually be felt through the skin at the margins at the front of the chest where the ribs were broken. There were actually broken in a line [on the left] … The sternum, that is the breast bone, was also broken in two places … [This created] a situation where it was very difficult to breathe. …[S]o she is unable to draw the air in, so that's how death occurs by being in effect [unable] to breathe and the lack of oxygen.' The Doctor concluded that his (sic) was the principal cause of death, together perhaps with haemorrhaging to the brain in the area of bruising to the head.
Dr Ellis stated that the pattern of the rib fractures on both sides, the double break of the sternum and some fractures at the back of the ribs 'would indicate to me that considerable force had to be used'. The breaking was consistent with someone stomping or jumping on the deceased as she lay on the floor."
9 Dr Raftos, a specialist in emergency medicine, gave evidence that the chest injuries would have resulted in the loss of consciousness "within minutes". The injuries were of a type seen in major car accidents and falls. The requisite force would be similar to that applied by a person jumping or stomping on the chest.
10 That the perpetrator of the injuries described which led to death, did not, beyond reasonable doubt, intend at least to cause grievous bodily harm is a proposition which I find astonishing. Nevertheless the jury verdict necessarily conveyed their conclusion that, whatever the intention of the respondent at the time of killing, it was something less than an intention to cause harm of that magnitude. Accordingly, judicial discipline obliges any assessment of sentence to reflect a level of intention compatible with that jury finding. The difficulty of maintaining the correct perspective in this particular case is demonstrated by part of the Crown written submission:
"His Honour did not make any findings about intention, other than those excluded by the verdict. It was however beyond any doubt that the respondent did in fact inflict grievous bodily harm and it was on that basis, independent of any finding regarding his intention that his Honour was required to impose sentence."
11 In a sense the submission is an understatement. The respondent stood for sentence, not because he in fact caused grievous bodily harm, but because in fact he killed. That is not to say that the circumstances in which death was caused are irrelevant but those considerations cannot overwhelm the level of intention as a primary and significant factor in measuring culpability.
12 There was a particular aggravating feature to be taken into account. The respondent was on bail at the time of the offence. There is ample authority that an offender who has abused the conditional liberty of bail by committing further crime should expect salutary penalty. R v Richards 1981 2 NSWLR 464; R v Readman 1990 47 A Crim R 181.
13 The appellant submits that the circumstance that the respondent was on bail at the time he committed the offence does not appear to have been given any material weight in assessment of sentence. In his remarks Hidden J twice referred to bail. First, he mentioned the circumstances for which he was on bail and that the ensuing convictions were later set aside in this Court. Second, although his Honour found that the killing was occasioned during a stressful period of the respondent's life he added that "the attack was brutal and the offence is a serious one within this category of manslaughter. In addition he has previous convictions for violence and was on bail at the time." The stress, his Honour had earlier identified as "some kind of threat from bikers" which he found was "a matter of limited significance for the purpose of sentence." The Crown submission observed that there was no mention in his Honour's remarks of principles relevant to commission of offences whilst on bail. Whilst that is accurate I am unpersuaded that, given the deliberate reference to bail on two occasions, the issue was overlooked. Nor am I satisfied that there was any misapplication by his Honour.
14 The issue of bail is, to an extent, interwoven with matters on the respondent's record. Prior convictions are capable of depriving an offender of leniency which he might be able otherwise to seek. There were two significant matters. In 1996 he was placed on a recognizance to be of good behaviour for twelve months upon conviction at Blacktown Local Court of assault occasioning actual bodily harm and malicious damage. He had struck a Ms Gordon, with whom he was in a relationship over an extended period. The property damage was caused by his kicking a wall at his mother's house.
15 In 1998 at Parramatta Local Court he was found guilty of maliciously inflicting grievous bodily harm on Ms Gordon and sentenced to twelve months imprisonment (comprising minimum term nine months and additional term three months). She had been hit around the head and body with an axe handle and was hospitalised for fractures of the ulna and fibula and was also noted to have bruising and lacerations variously located about her head, arms, shoulders, abdomen, and ankles. Detail regarding these offences was tendered in these sentencing proceedings. His Honour made express, if brief, reference to "previous convictions for violence". No error is demonstrated.
16 Specific challenge was made against two conclusions expressed in the remarks on sentence.
17 His Honour manifestly turned his attention to the issue of protection of the community including members of the respondent's family. He stated:
" The possibility of further acts of violence by the offender, particularly in the context of a relationship with someone to whom he is emotionally attached, is a matter of concern and cannot be ignored. Dr Allnutt did not attempt to assess the likelihood of his re-offending in that way although, in the offender's favour, he noted that he had enjoyed a supportive family environment as a child and has the capacity to pursue gainful employment. As I have said, it seems that he can still look to one of his siblings for continued support. On balance, with appropriate counselling while in custody and supervision upon his release, I think that there is a reasonable prospect that he will not re-offend. I strongly recommend to the Corrective Service authorities that he be afforded every opportunity to undergo the counselling which Dr Allnutt has advised."
18 The recommendations of Dr Allnutt were simply:
"1. Drug and alcohol counselling.
2. Anger management counselling."