Regina v Quealey

Supreme Court of NSW|2010-12-17|Before: Hall J

REMARKS ON SENTENCE 1The offender, Melanie May Quealey, was charged on indictment dated 19 October 2010 that on 4 November 2009, at Cessnock, she did murder Tony Keith Coleman. 2On 10 November 2010, she was convicted by a jury on a charge of manslaughter in relation to the deceased's death. She now stands for sentence in relation to her conviction. 3The offender is presently aged 29 years (date of birth, 6 July 1981). 4The offender has been in custody since her arrest on 5 November 2009. It is to be noted at this point that the offender has since been sentenced to a term of imprisonment in respect of the period in relation to other offences. Accordingly, the Crown has submitted that the earliest date upon which the sentence to be imposed in respect of the subject offence is 4 March 2010. I will return to discuss that aspect later in these remarks. 5At the sentencing hearing on 17 December 2010, the Crown tendered a number of documents. These together constitute Exhibit A in the sentencing proceedings. Included within that exhibit is a Victim Impact Statement of Jennifer Jones dated 19 November 2010 to which I will refer later in these remarks.

Facts 6The offender did not give evidence at the trial and there was no witness to the events surrounding and leading to the stabbing of the deceased. 7In those circumstances, the Court is not in a position to make positive findings as to precisely what the deceased said or did (if anything) to the offender immediately prior to the stabbing incident, nor as to what the offender said or did in the events immediately prior to the stabbing. 8There was at trial some evidence that enables findings to be made as to the conduct of the deceased some hours removed from the time of the stabbing and such findings provide a basis for the drawing of inferences of a general nature concerning the events that preceded and surrounded the stabbing. 9The offender and the deceased set up camp for the night on the day of the stabbing in the area of the Catholic Hall at Cessnock. The evidence indicates that the deceased was, at the time he was stabbed in the left thigh, standing in the area of the double doors in the southern wall of the Catholic Hall where there was found a large area of blood. 10The 000 emergency call made by the offender was received at 11.34 pm on 4 November 2009. The inference is that the stabbing occurred not long before that time. 11Earlier in the day, the offender and the deceased had attended the Neighbourhood Centre in Vincent Street, Cessnock. The evidence was that the deceased, whilst at that office, was "a bit agitated" , that he was swearing and "he was a little bit cranky with the lady that he was with" . The evidence was that, whilst at that office, the offender and the deceased "argued on and off all day while they were there" . When they left that office at 3.45 pm, the deceased and the offender were seen fighting with one another. The evidence was that, as they left "... they were yelling at each other and anybody around ..." . 12At the sentencing hearing, the Crown tendered the statement of Mr James Barry dated 13 May 2010. 13At about 8.20 pm on 4 November 2009, Mr Barry noted a male and female near the Catholic Hall in Cumberland Street, Cessnock. It is clear that the persons to whom he referred were the deceased and the offender. He noted that they appeared to be arguing and he said "... I remember the male yelling at her ... the male sounded angry when he was yelling at the female" . He then noted the female walk away from the male to whom he had referred. She approached Mr Barry and asked for directions which he gave her and then she walked away from him. He said that the male stayed across the road and "... continued to yell at her and I remember him yelling quite loudly at her ..." . 14The first interview conducted by police with the offender occurred at 8.00 am on 5 November 2009. In the course of that interview, the offender gave an account of two persons, one described as of Aboriginal appearance, confronting the offender and the deceased. That person she claimed stabbed the deceased. She was subsequently interviewed on the same day by investigating detectives and gave a significantly different account of events. 15According to the evidence given at trial, the offender earlier told Ambulance Officer Johnson at the crime scene that "a bloke they didn't know tried to rob them and stabbed him" . She also gave an account to Sergeant Jones at the crime scene "two blokes came down the hill and tried to roll us" . 16Evidence was called from a Mr Ceissman who gave evidence that, at the Cessnock Police Station, the offender made statements to him in which he claimed that she said to him "... I've stabbed my husband and I hit a main artery and he's died. I didn't mean to kill him but, I've tried to wrap him, I tried CPR on him, I was just sick of him beating shit out of me all the time so" . 17The medical evidence was that the knife wound penetrated the thigh of the deceased. It completely severed the sartorius muscle and then it had cut the underlying femoral artery and vein. The wound had an approximate depth of penetration of four centimetres. 18The medical evidence also indicated that a wound to the thigh area, as in the present case, did not conform to stabbing incidents that have occurred in other cases in which often the stabbing wound was usually in the higher regions of the body. 19On the evidence at trial, a reasonable inference may be drawn that the deceased had continued to act in an aggressive manner towards the offender, although the evidence does not permit a finding to be made of him having made any specified or continuing physical attacks upon the offender in the period of time either immediately before or at the time of the stabbing. 20I note at this point that the evidence does support the fact that both the deceased and the offender had serious chronic substance abuse problems.

The basis of the charge of the offence of manslaughter 21At the hearing of the proceedings, the jury were instructed in relation to possible bases for a conviction for the offence of manslaughter. The first was provocation. The second was on the basis of a dangerous and unlawful act. The jury were also left to consider the issue of manslaughter by excessive self-defence. 22The jury were instructed that there was barely any evidence of self-defence. As the Crown observed in its submissions, the offender never asserted a belief that she had a need to defend herself, let alone the use of a knife as being necessary. 23The issue of provocation was left to the jury upon the basis of the history in a number of statements which she made to the police when initially interviewed in which she maintained that the deceased had mistreated her in various ways up to the date of his death and on that date. The offender, in this regard, referred to occasions on which she claimed that she had been subjected to taunting comments and physical mistreatment at the hands of the deceased. 24The Crown, however, submitted that there was no real evidence of a loss of self-control on the part of the offender. The learned Crown Prosecutor, however, fairly observed in this respect that the evidence established that there was only a single knife wound inflicted on the deceased involving an apparently partial insertion of the blade of the knife into the thigh of the deceased. 25The Court is required to make its own determination, based on the evidence at trial, as to the basis of manslaughter upon which the offender should be sentenced. It has been held that it is not for the Court to seek to determine the basis upon which the jury may have arrived at their verdict, if indeed there was common agreement amongst them as to the basis for it: Regina v Isaacs (1997) 41 NSWLR 374, (1997) 90 A Crim R 587. 26It was the Crown's submission that the Court should proceed in sentencing the offender upon the basis of manslaughter by dangerous and unlawful act. 27In her submissions on behalf of the offender, Ms J Hickleton of counsel also submitted that this was the proper basis upon which I should proceed to sentence. 28I am of the opinion that the reasonable and proper inference to be drawn is that the jury's verdict was reached upon the basis of a dangerous and unlawful act, being the act of the offender in taking hold of the knife in circumstances of a disputation between her and the deceased. The nature of the blade on the knife was such as to indicate its potentially dangerous quality and the inference from the evidence is that the offender, in some way, used it during the course of the disputation in circumstances that were both dangerous and unlawful. 29Accordingly, I proceed upon the basis which I have inferred and proceed with these remarks on that basis.

The offender's personal background 30The evidence tendered on behalf of the offender consisted of the report of Ms Anna Robilliard, a consultant psychologist. 31Ms Robilliard's report dated 13 December 2010 was tendered on behalf of the offender and was admitted as Exhibit 1 in the sentencing proceedings. 32Ms Robilliard interviewed the offender at Mulawa Correctional Centre on 3 December 2010. At the time of the interview, she was on Methadone as part of a drug rehabilitation programme. 33In the history provided to Ms Robilliard, it is recorded that the offender was the member of a family consisting of two girls and that her elder sister had committed suicide at the age of 17 years, the offender at the time being aged 11 years. Her parents separated when she was very young and she had no memory of them co-habiting. 34The history provided to Ms Robilliard included an account given by the offender of sexual abuse by her stepfather. She claimed that she had been left in his care after her mother left when the offender was 15 years of age. Subsequently the offender moved to the inner city where she lived on the streets with friends. She has maintained no family connections. 35She had a disrupted schooling, both at primary school level and in high school, with the family moving from one location to another. She left high school in Year 8 and she stated that she has not had an opportunity of further formal education. In custody, she has participated in courses in literacy, numeracy, computer skills and pottery. She told Dr Robilliard that her goal is to achieve her Year 10 School Certificate. 36The offender has had a number of relationships that have involved a range of problems leading to the break down of those relationships. She also provided a history of relapsing into drug usage at various stages in her life. 37According to her statements to Ms Robilliard, she wishes to re-establish and maintain contact with her three children who have been placed into the custody and control of DOCS. Her ultimate goal is to have a meaningful role in their lives. 38According to the history, the offender had a relationship of approximately a year with the deceased, having apparently met him in a Methadone Clinic at Penrith. 39The history recorded by Ms Robilliard is that they began staying together three or four months prior to the offence in question, although they did not ever enjoy a permanent residence. In the month prior to the offence, the couple stayed at Bateman's Bay with friends and prior to that they had been living in refuges around Sydney. The offender gave an account of the fact that both she and the deceased were on Methadone and using other medication, in particular, Xanax (Alprazolam). 40According to accounts that she provided, the offender's relationship with the deceased was marked with conflict and was, at times, an abusive relationship. The offender claims in her history to Ms Robilliard to have been subjected to some physical violence which she endeavoured to avoid doing anything to cause an escalation of it. 41In terms of her past mental health history, the offender was 22 years of age when she was admitted for treatment of a mental illness at Rozelle Hospital for a period of a week. It appears that this was a problem involving a drug related psychosis. 42Her history also indicates that she had previously been treated with antidepressant medication off and on. She claims to have first experienced amphetamines at the age of 13 years, smoked cannabis at the age of 15 years and at about that age she was introduced to heroin, which quickly became her drug of choice. Over the recent years, according to the history to Ms Robilliard, she has been on and off Methadone programmes. 43Ms Robilliard reported on assessments made which are described in her report. The offender's total score on testing indicated symptoms consistent with survivors of traumatic life experiences and as consistent with a history of child abuse. According to Ms Robilliard, therapeutic interventions are required in addressing fundamental underlying traumatic experiences and otherwise long-term psychotherapeutic interventions are indicated. The underlying problems which the offender has had and which were identified by Ms Robilliard clearly account for past life problems including abusive relationships and heroin addiction. 44It is apparent from Ms Robilliard's report that the offender does require careful management, monitoring and support of the kind referred to in Exhibit 1. Ms Robilliard recommended that when the offender is approaching release, she would be advised to consider going to a community based, long-term residential rehabilitation programme. Her re-integration into the community, it is clear, will be slow and will require support including that of the Probation & Parole Service.

Crown submissions 45In determining sentence, it is necessary to have regard to the relevant matters arising in terms of s.21A of the Crimes (Sentencing Procedure) Act 1999. The Crown identified two matters by way of aggravating factors under the provisions of that section, namely:- (1) The use of a weapon. (2) That the offender was on conditional release at the time of the offence, having been bound by four bonds to be of good behaviour pursuant to s.9 of the Crimes (Sentencing Procedure) Act . 46In relation to the circumstances of the offence, the Crown observed that the Court was required, in effect, to sentence in what it referred to as "a vacuum" . It was contended that the Court would have difficulty in placing any reliance on assertions made by the offender to police and others which were self-serving, except when supported by independent evidence. I accept that submission. 47The Crown also submitted that a number of matters were established beyond reasonable doubt. These included the fact that both the offender and the deceased had a serious and chronic substance abuse problem and that the deceased exhibited aggressive and frustrated behaviour towards those he was dealing with early on the day of the offence and that the deceased and the offender were seen arguing with each other. 48In its submissions, the Crown contended:- (1) That any conduct by the deceased towards the offender would not aggravate the offence but that its relevance would be its ability to mitigate the offending. (2) The Crown contended that the Court would be satisfied beyond reasonable doubt that during the day the deceased exhibited aggressive and apparently verbally abusive behaviour towards the offender and that the Court may be satisfied that it was accompanied by some physical intimidation by the deceased. (3) It was further submitted by the Crown that the Court would not accept the account given by the offender to police of a continuing ferocious physical assault involving punching and kicking of the offender by the deceased up to the time of the wounding. (4) The Crown made no submission as to whether the Court would be satisfied on the balance of probabilities that some physical violence, of a lesser intensity, was perpetrated by the deceased. 49In relation to the offender's background, the Crown acknowledged that the Court would be satisfied that the offender is a chronic poly-substance abuser. The edited versions of transcripts of interviews with the offender were tendered at the trial and became Exhibit CC and Exhibit HH. The Crown acknowledged that these documents contained assertions by the offender which, if accepted, would lead to a finding of the offender having a deprived background and being subject to childhood abuse and physical and sexual abuse. 50The Crown acknowledged that the judgment of the Court of Criminal Appeal in relation to the offender's mother ( Regina v Julie Ann Quealey [2010] NSWCCA 116) could provide some support for what otherwise would be self-serving assertions by the offender as to her background. 51As to mitigating factors, the Crown acknowledged that in terms of s.21A(3), the offence was unplanned and was reasonably spontaneous. 52The Crown contended that the offender's prior criminal history disentitles her to leniency but that it did not aggravate her criminality. 53It was also contended the past criminal history of the offender and the history of drug taking would mitigate against a finding of good prospects of rehabilitation or the unlikelihood of re-offending. 54As to the question of remorse, the Court was unable, so the Crown submitted, to make a finding in the offender's favour on the basis upon which the trial was conducted. 55However, the Crown did acknowledge that it was open to the Court to find evidence of some remorse for the consequences of the event. 56The Crown also contended that the offender's record was such that it evidenced a poor history of complying with the law and orders of courts and that these are factors which indicate a need for personal deterrence in the sentence to be imposed. 57Finally, the Crown contended that the offender will need a lengthy period of supervision upon her return to the community by reason of what was described as her anti-social nature and evident substance abuse problems. 58On the question of special circumstances, the Crown submitted that justifying an adjustment of the statutory ratio between non-parole period and total sentence, the Court would have regard to the offender's previous inability to comply with orders as to supervision. 59However, that said, the Crown observed that the fact of the accumulation of the sentence for the offence of manslaughter for the subject offence upon sentences imposed for breach of bonds by the Penrith Local Court and the sentence that I am required to deal with could require some adjustment to the ratio.

Submissions on behalf of the offender 60Ms Hickleton contended that the relevant sentence in respect of the offences consequently imposed following breaches of the bonds should be concurrent with the sentence that is to be imposed in respect of the offence of manslaughter. 61Ms Hickleton also submitted that there was no evidence before the jury that would enable the Court to conclude beyond reasonable doubt as to exactly how the injury came about that led to the deceased's death. 62However, it was submitted that some guidance could be taken from the evidence as to the nature of the injury in determining the level of the offender's culpability. 63Reliance was placed on the evidence given at trial by Dr Du Flou which indicated that the thigh area was a most unusual place to find a wound by the use of a knife. The offender would be taken as having no knowledge of the position of the femoral artery and therefore the nature of the wound indicated that the act was not intended to cause serious bodily harm, even though it did, in fact, sever the artery. 64In her submissions, Ms Hickleton made a number of submissions concerning the circumstances of the offence and those pertaining to the offender herself. In particular, the following matters were raised:- (1) By reason of the unknown position of the femoral artery, it was submitted the offender could not have appreciated how serious injury could be. (2) That the applicant's reaction following the stabbing was to seek help for the deceased and she expressed genuine grief and distress over his injuries and, subsequently, his death. (3) There was no evidence that the applicant had previously been violent towards the deceased. It was noted that her criminal record did not reveal her to have been a person with a violent personality or disposition. (4) That although a knife was used as a weapon, the knife belonged to the deceased. It was further observed that the knife was not carried by the offender for any other purpose than to use it for cutting and preparing food. (5) The offender had been subject to sexual abuse and had a very difficult relationship with her mother and had had a deprived upbringing. (6) Since being in custody, the offender had re-established contact with her children and that this in itself provides a very powerful incentive to rehabilitate and turn her life around. It was observed that the offender has undertaken a number of educational courses with the aim of completing her Year 10 School Certificate. (7) That the offender will need an extensive period of supervision on parole. (8) That the offender has good prospects of rehabilitation probably for the first time and that her prospects of re-offending in similar fashion to that involved in the subject charge were minimal. 65In the course of her submissions, Ms Hickleton referred to certain matters raised by Ms Robilliard in her report. It was contended that the assessment by Ms Robilliard represented the first time that a proper psychological assessment had been undertaken and the direction for rehabilitation identified. 66In terms of sentencing options, at one point in her submissions, Ms Hickleton contended that it was open to the Court on sentencing to impose, as a condition of parole, that the applicant spend six months in a residential programme. The Crown took issue with this submission, observing that the only power to make parole orders was that set out in s.50 of the Crimes (Sentencing Procedure) Act . I also note, in particular, the provisions of s.51 of that Act entitled "Conditions on parole orders" as well as the limitations on conditions referred to in s.51(2) and clauses 6(1) and 6(2) of the Crimes (Sentencing Procedure) Regulation 2010 in relation to the procedure before conditions as to residence and treatment are imposed on parole. I accept the Crown's submissions on this point. 67Ms Robilliard's report does provide a detailed analysis of the offender's background and current position. It is a useful report, insofar as it sets out what would be required to reverse or change the offender's life from one involving drug taking and criminal offending to one leading to necessary rehabilitation and to a satisfying and useful life. I propose to refer to Ms Robilliard's recommendations later in these remarks.

Findings 68In relation to the submission made that the offender has good prospects of rehabilitation, as the Crown observed and I accept, the question of the prospects of re-offending extends beyond the offence of manslaughter. It concerns the likelihood or otherwise of the offender re-offending in the general sense of that expression. 69The Crown submitted that such a finding could not be made that the offender has good prospects of rehabilitation, referring, in particular, to her criminal history and the evidence as to her re-offending whilst on conditional liberty. Ms Robilliard's report, in itself, it was submitted, did not establish the contrary but essentially it identified what would be required if the offender was to be rehabilitated. I consider that this is a proper interpretation of Ms Robilliard's report. I do not consider on the material presently available that it can be said that the offender has good prospects of rehabilitation. 70However, that said, she is still a young person at age 29 years. There have been cases of persons with histories of serious criminal offending who, through persistence and with the necessary support, have turned their lives around and led very fulfilling and useful lives. There are positive aspects in this case including the offender's communication with one or more of her children since in custody, her participation in various courses, to her ambition to obtain her School Certificate. These indicate that there is reason to believe that, with the necessary support and with required determination and persistence, there does exist the possibility that the offender could turn her life in a completely new direction. 71In relation to the question of the objective seriousness of the offence and, in particular, the actual circumstances of the stabbing, I note the Crown's position that there is no evidence upon which a finding could be made as to what triggered the use of the knife. 72The learned Crown Prosecutor accepted that the evidence of Mr Barry, who observed the offender and the deceased arguing and to which I have earlier referred, together with other evidence as to the deceased's observed conduct earlier in the afternoon on the day of the offence, would establish and support a finding that the stabbing was associated with or occurred in a situation of disharmony between the parties but that such evidence would not permit a more precise finding to be made as to the circumstances of the stabbing. 73The deceased's conduct prior to him being stabbed is a relevant matter as that it may, depending upon the findings made, operate to mitigate the offending. In these proceedings, the Court need only be satisfied of such conduct on the balance of probabilities. 74I accept the Crown's submissions that the evidence as to the circumstances of the stabbing is limited in the respects referred to by the Crown. However, the evidence does permit a finding to be made, which I do make, that on the evidence as to the observed conduct of the deceased earlier in the day of the offence and to which I have referred, the deceased was the initiator of aggressive exchanges with the offender. That evidence supports a finding that arguments or disharmony arose in the period leading up to the stabbing to which the deceased's conduct contributed. To an extent, that finding provides some mitigation of the objective culpability of the offence.

Sentencing of the offender 75Firstly, the circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder vary infinitely. Street, CJ in Regina v Hill (1981) 3 A Crim R 397 at 400 indicated that it is not always easy to determine in any given case what should be done in the matter of sentencing for such offences in particular cases. 76I am required to have regard to the consideration that the unlawful taking of a human life is always to be viewed as a serious crime. The respect for and the protection of human life is a primary objective of our system of criminal justice: see Regina v MacDonald (NSWCCA, unreported 12 December 1995). 77The general principles to be applied by a sentencing judge after conviction by a jury were set out in Isaacs (supra). It has been held that the judge is entitled to form his own view of the facts, provided that it is consistent with the verdict: Regina v Pilley (1991) 56 A Crim R 202. 78In sentencing the offender, I have regard to the purposes of sentencing set out in the provisions of s.3A of the Crimes (Sentencing Procedure) Act . These are stated to include:- (1) To ensure that the offender is adequately punished for the offence. (2) To prevent crime by deterring the offender and other persons from committing similar offences. (3) To protect the community from the offender. (4) To promote the rehabilitation of the offender. (5) To make the offender accountable for his or her actions. (6) To denounce the conduct of the offender. (7) To recognise the harm done to the victim of the crime and the community. 79As the High Court observed in Veen v The Queen (No 2) (1988) 164 CLR 465, the purposes of criminal punishment are various and overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. 80They are guideposts to the appropriate sentence but sometimes they do point in different directions. 81In determining the appropriate sentence for the offence of manslaughter in these proceedings, I am required by the provisions of s.21A of the Crimes (Sentencing Procedure) Act to take into account the relevant aggravating and mitigating factors referred to in s.21A(2) of the Act. 82The use of the weapon of choice, as the Crown observed, was one circumstance pointing in the direction of an intention to inflict grievous bodily harm. The Crown, however, fairly acknowledged that the limited degree of penetration of the knife could be considered as a countervailing consideration. In all the circumstances, the Crown's submission was that the Court should proceed upon the basis that it cannot be satisfied beyond reasonable doubt that, at the time, the offender had the necessary intent. I accept the Crown's submission as having been properly made in this respect and I proceed upon that basis. 83The Crown submission was that the only evidence that the knife belonged to the deceased came from the offender herself and that there was no evidence from which a finding can be made that the knife did in fact belong to the deceased. 84Be that as it may, it does appear that the knife was, at least on one view, effectively in their joint possession or custody prior to attending at the Catholic Hall in Cessnock. 85In terms of aggravating factors under s.21A of the Crimes (Sentencing Procedure) Act , the Crown identified two factors. The first was that a weapon was used by the offender. Secondly, the offender was on conditional release at the time being bound by four s.9 bonds to be of good behaviour. 86I accept that these are factors to be taken into account and I do so. 87In evaluating the circumstances of and leading to the commission of the offence, the Crown properly observed that it is difficult to accept the various statements made by the offender to the police as well founded. Many of them were self-serving. Additionally, as I have noted, conflicting versions were given by the offender to police as to the circumstances of the stabbing incident. 88The evidence of Mr Barry does enable an inference to be drawn that, as at the time he made his observations at approximately 8.20 pm, the aggressive conduct by the deceased observed earlier on 4 November was continuing or at least had recurred as at that time. I accept as a matter of inference from the evidence that the deceased did act in an intimidatory manner towards the offender. 89However, I am not prepared to accept the various accounts given by the offender to police that she had been subject to a sustained beating over a period of time on the evening of the stabbing of the deceased. The medical evidence does not support the presence of injury or other objective evidence consistent with such a beating. I am, however, as I have indicated, prepared to accept that a lesser form of intimidation and some form of physical assault more than likely. 90In terms of the conditional liberty to which the offender was subject at the time of offence, it is clear that that fact in itself was an aggravating circumstance of some importance in this case and is to be taken into account. 91The Crown tendered on sentence the judgment of the Court of Criminal Appeal in Julie Ann Quealey (supra). The Crown understood that the appellant in those proceedings was the mother of the current offender and fairly conceded that the Court could regard the judgment as some support for what might otherwise seem self-serving assertions by the offender as to events in her background. I accept that the judgment does provide some support in this personal life. 92On consideration of the evidence and submissions, I find the following mitigating factors:- (1) That the stabbing incident was an unplanned and a reasonably spontaneous event. (2) That the deceased acted towards the offender in an intimidatory manner, involving verbally abusive statements and conduct demeaning to the offender at times in the afternoon and evening of 4 November and that there was disharmony between them up to the time of the stabbing incident. 93The offender's prior criminal conduct and history does not entitle her to leniency but it does not aggravate her criminality and I proceed upon that basis. 94In respect of the offender's prospects of rehabilitation, I add to the comments I have earlier made that her prospects in this respect are very much caught up with her ability to overcome her drug problems and to be rehabilitated in that respect. 95In respect of remorse, I do not consider that a finding can be made in terms of s.21A(3)(i), the offender having maintained her plea of not guilty and her conduct of the trial on that basis. It is difficult to disentangle subsequent expressions of sorrow and manifestations of distress as wholly or even substantially tied up with the position the offender found herself in and the consequences to her following the stabbing. 96The offence of manslaughter in this case is of such seriousness that, for the purposes of s.5(1) of the Crimes (Sentencing Procedure) Act , no other penalty than imprisonment is appropriate. 97I have had regard to the objective seriousness of the offence and to all of the relevant subjective features of this case. The task of this Court is, whilst making allowance for the relevant subjective circumstances, to arrive at a sentence which is appropriate to the offender's crime and which pays due regard to the objective gravity to which I have referred: see Regina v Dodd (1991) 57 A Crim R 349 at 354. 98I have had regard to the Victim Impact Statement of Ms Jones, which was tendered by the Crown and constitutes part of Exhibit 1. I have received and considered that statement to the extent that it is appropriate to do so in accordance with the provisions of s.28 of the Crimes (Sentencing Procedure) Act ; Regina v Previtera (1997) 94 A Crim R 76; Regina v Berg [2004] NSWCCA 300 per Wood CJ at CL at [48] to [49]. 99The statement of Ms Jones eloquently conveys a mother's grief for the loss of her son. I wish to acknowledge in these remarks her expressions of grief and anguish that are so clearly set out in her statement.

Two matters concerning unrelated offences 100Before coming to the sentence to be imposed in respect of the offence of manslaughter, there are two matters concerned with unrelated offences committed by the offender which must be given consideration in determining the sentence to be imposed for the offence of manslaughter. 101The first concerns the commencement date for the sentence to be imposed for the offence of manslaughter, having regard to the fact that on 20 January 2010, the Central Local Court imposed a sentence by way of a 4 month term of imprisonment in relation to a breach of a s.9 bond in respect of an offence of larceny which sentenced commenced on 4 November 2009. That Court also imposed a 3 month bond in respect of a further larceny offence, the term of which also commenced on 4 November 2009. These matters are to be taken into account in determining the commencement date for the sentence to be imposed in respect of the offence of manslaughter. 102The second matter concerns two s.9 bonds breached by the offender and for which she is yet to be dealt with.

(1) Sentences in respect of offences charged before the Penrith Local Court 103In relation to the larceny offences, the history in relation to them is that, on 26 August 2009, the offender appeared before Penrith Local Court. That Court imposed s.9 bonds for periods of 12 months. 104On 20 January 2010, as I have stated, the Penrith Local Court dealt with the offender's breaches of the last two mentioned bonds and it imposed terms of imprisonment of 3 months and 4 months respectively, as I earlier stated. 105Against that background, the Crown has submitted that between 4 November 2009 and 3 March 2010 the offender was serving sentences of imprisonment in respect of the larceny offences to which I have referred and that, accordingly, the earliest date for the commencement of the sentence in respect of the offender's conviction for manslaughter should be 4 March 2010. 106Ms Hickleton contended that the sentence should be backdated earlier, namely, to the date of the offender's arrest on 5 November 2009.

(2) Outstanding offences 107On 17 April 2009, the offender attended Central Local Court in answer to two charges:- (1) A charge made on 11 March 2009 in respect of " intentionally/ recklessly destroy or damage property" (offence reference number: 4276653). (2) A charge made on 13 March 2009, in respect of "intentionally/ recklessly destroy or damage property" (offence reference number: 4291431). 108On 17 April 2009, the Central Local Court imposed two s.9 bonds in respect of each of those offences. 109The breach of the two s.9 bonds imposed with respect to each of these offences have not been dealt with and the Crown and the offender have agreed that, prior to sentence being passed in respect of her conviction for manslaughter, I am to deal with those breaches and the offences to which they relate. Ms Hickleton stated that the offender consented to this Court dealing with these matters. 110This Court may, with the offender's consent, call on the offender to appear before it: s.91(1) of the Crimes (Sentencing Procedure) Act . As I have earlier indicated, the offender gave her consent pursuant to that provision. Accordingly, it remains for this Court to determine what, if any, action should be taken in respect of those breaches and the offences. 111The Court may, pursuant to s.98(2) of the Crimes (Sentencing Procedure) Act take one or other of the courses set out in that provision. The Court is thereby empowered to revoke a bond (s.98(2)(c)). In the event that an order is made revoking a good behaviour bond, the provisions of s.99(1)(a) provide for this Court to re-sentence the offender for the offences to which the bonds relate. 112The facts concerning these two charges made on 11 and 13 March are as follows:-

(a) The offence - 11 March 2009 113Exhibit A in the sentencing proceedings includes documentation tendered by consent relating to the first breach (Tab 2). According to the Facts Sheet dated 14 December 2010, at approximately 8.45 pm on Wednesday 11 March 2009, the offender was seen by two witnesses walking along Darlinghurst Road, Darlinghurst. They heard a loud smashing sound coming from the opposite side of the road. The offender was identified as standing directly next to a grey hatchback Toyota Corolla. The offender was standing in front of driver's side window at the time. 114On investigation, police observed that the offender had multiple cuts and wounds to her hands consistent with that of being cut by broken glass. A small brick was retrieved from inside the vehicle which it was contended was used by the offender as a projectile in committing the offence. 115The Facts Sheet records that when the witness asked her why she had smashed the window, she replied, "My boyfriend ... dog ... Leaving me" .

(b) Offence - 13 March 2009 116The Facts Sheet records that around 2.30 am on Friday 13 March 2009, the offender was noticed standing next to the driver's side window of a motor vehicle. She was seen to place her hands and face upon the driver's side window and make a pitching motion toward the vehicle. A loud bang was heard. 117On investigation, police located a brick pointed out to by a witness as being the object used to hit the vehicle and causing it damage. 118I will shortly proceed with sentencing the offender in respect of those offences.

Commencement date of sentence (manslaughter) 119I turn to the issue as to the date of commencement of the sentence to be imposed in respect of the offence of manslaughter. In relation to the sentence of 4 months imprisonment imposed on the offender by the Penrith Local Court on 20 January 2010, I have considered the application of the principles of proportionality and totality as expounded upon by the Court of Criminal Appeal in Regina v MMK [2006] NSWCCA 272 at [11] to [13] and as discussed by Howie J in Cahyadi v Regina [2007] NSWCCA 1 at [28]. In the course of doing so, I have had regard to the overall criminality involved in all of the offences for which the offender is to be sentenced and the issue of the totality that arises for consideration in the context of these matters in the present proceedings. Having done so, the appropriate balance in this case to be reflected in the commencement date for the offence of manslaughter I consider to be achieved by a commencement date of 4 February 2010, that is to say that the sentence for that offence will commence at the expiration of 3 months of the 4 month sentence of imprisonment imposed by the Penrith Local Court. 120In relation to the sentences which I propose to pronounce in respect of the two offences under s.195(1)(a) of the Crimes Act (intentionally or recklessly damage property), the term of those sentences will also commence on 4 February 2010. Accordingly, the term of the sentences in respect of those sentences will be wholly concurrent with the sentence to be imposed with respect to the sentence in respect of the offence of manslaughter. In that determination, I have, in particular, taken into account the nature and circumstances of the offending in respect of the offences under s.195(1)(c) of the Crimes Act which, on the spectrum of criminal offending, is at or towards the lowest level of that spectrum. 121In relation to the offence of manslaughter, I have considered whether in the circumstances established in evidence this is a case in which I should make a finding of special circumstances in terms of s.44(2) of the Crimes (Sentencing Procedure) Act . Whilst I have well in mind the fact that the offender has shown an inability to comply with previous orders that have involved her supervision, I have, nonetheless, determined that such a finding should be made. In this respect, the evidence (including, in particular, the report of Ms Robilliard) establishes that the offender will require a longer period of supervision whilst on parole than the statutory ratio would otherwise permit. 122Ms Robilliard's examination and assessment clearly indicates that for the offender's effective reintegration into the community there will be a need for careful monitoring and support for her including, in particular, in the period whilst she is on parole. Such support will include, so far as is possible, the type of psychotherapeutic interventions referred to in Ms Robilliard's report including, in particular, interventions that are required for the offender's substance rehabilitation. I would strongly recommend, so far as practicable, the implementation of Ms Robilliard's recommendations as a means of achieving one of the objectives stated in s.3A of the Crimes (Sentencing Procedure) Act , namely, "to promote the offender's rehabilitation" .

Sentence 123On the offence of manslaughter, the offender is sentenced to a non-parole period of 3 years and 6 months to commence on 4 February 2010 and to expire on 3 August 2013 and to a parole period of 2 years and 6 months to expire on 3 February 2016. 124In respect of the two offences under s.195(1)(a) of the Crimes Act 1900 (intentionally/recklessly destroy/damage property), the bonds under s.9 of the Crimes (Sentencing Procedure) Act are revoked and the offender is sentenced to a period of imprisonment of 2 months to commence on 4 February 2010 and to expire on 3 April 2010. 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: 25 October 2011

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