REGINA v STEVENS

Supreme Court of NSW|2008-10-07|Before: Hall J

CITATION : REGINA v STEVENS [2008] NSWSC 1370

HEARING DATE(S) : Tuesday 7 October 2008, Friday 5 December 2008

DECISION : I sentence the offender to a term of imprisonment with a non-parole period of six years and seven months to commence on 24 February 2007 and to expire on 23 September 2013 and to a balance of term of two year and two months to commence on 24 September 2013 and to expire on 23 November 2015. The earliest date upon which the offender will become eligible for release on parole will be 23 September 2013.

CATCHWORDS : CRIMINAL LAW - SENTENCING - manslaughter by reason of provocation - sentencing after plea of guilty with discount of 20 per cent - domestic relationship between offender and deceased - assessment of gravity of offence - reasonably low level of provocation in the form of deceased's drug abuse and neglect of parental duties and admissions of infidelity by deceased - extremely high level of violence inflicted - offender under the influence of excessive amount of prescribed medication on day of offence - limited evidence of prospects of rehabilitation

LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

Regina v Alexander (1994) 78 A Crim R 141 Regina v Blacklidge (NSW Court of Criminal Appeal, unreported 12 December 1995) Regina v Dodd (1991) 57 A Crim R 349 Regina v Fernando (1997) 95 A Crim R 533 Regina v Henry (1999) 46 NSWLR 446 at 381 Regina v Hill (1981) 3 A Crim R 397 CASES CITED : Regina v KMB [2005] NSWCCA 185 Regina v Previtera (1997) 94 A Crim R 76 at 86 Regina v Spiero (1979) 22 SASR 543 Regina v Thomson & Houlton [2000] NSWCCA 309 Regina v Wickham [2004] NSWCCA 193 Regina v Williams [2005] NSWCCA 99 Veen v The Queen (No 2) (1988) 164 CLR 465

PARTIES : REGINA v STEVENS, Bradley James

COUNSEL : C: C McPherson O: R Jankowski

SOLICITORS : C: S Kavanagh O: Ford Criminal Lawyers

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

1 HIS HONOUR: The offender, Bradley James Stevens, was originally charged in relation to the death of the deceased, Katrina Ann McMahon, with the following offences:-

(1) Murder pursuant to s.18(1)(a), Crimes Act 1900.

(2) Maliciously inflict grievance bodily harm pursuant to s.33, Crimes Act 1900.

(3) Assault occasioning actual bodily harm pursuant to s.59(1), Crimes Act 1900. 2 He was arrested on 24 February 2007 and has been in custody since that date. 3 On 4 September 2007, he was committed for trial on the charge of murder. 4 On 2 November 2007, the Director of Public Prosecutions presented an indictment charging the offender with the murder of Katrina Ann McMahon. 5 On 7 October 2008 at Lismore, on the first day proceedings were listed for hearing, the offender entered a plea of not guilty to murder but guilty to manslaughter by way of provocation. The Crown accepted the plea in full satisfaction of the indictment. The proceedings on that occasion were adjourned to Sydney for the purposes of a sentence hearing. 6 By his plea, the offender accepts that he acted in a violent fashion towards the deceased with intention to inflict grievous bodily harm. 7 On 7 October 2008, the Crown tendered a number of documents all constituting Exhibit A, they being:-

(3) Audio tape of recorded interview between Sergeant Campbell and the offender.

(4) Closed circuit television recording from the Australian Hotel, Ballina.

Facts 8 The offender was born on 7 December 1966. He was, accordingly, approximately 40 years of age at the date of the offence committed by him. 9 According to the statement of agreed facts, the offender and the deceased had been in a de facto relationship since 2000. They had two children, one aged four and the other two months respectively, as at 24 February 2007. 10 The offender and the deceased had a long history of drug addiction. The deceased was on a registered methadone programme. 11 The relationship is described as dysfunctional, predominantly because of the constant and excessive drug use by the offender and the deceased. Whilst loving at times, their relationship was marred by periods of violence towards each other. 12 Since 2003, on several occasions, the deceased had been observed by witnesses to have facial and other injuries. The deceased gave conflicting versions as to how these injuries were caused. 13 Following the birth of their youngest child on 21 December 2006, the relationship between the offender and the deceased deteriorated. The offender complained that the deceased was not at home enough and was using drugs instead of caring for the children. The offender also suspected that the deceased was being unfaithful. 14 The deceased complained to some people about the offender's violence and drug use and stated that she felt unsafe at home and that she was afraid that the offender would obtain custody of their children. The deceased told other people that everything was alright between them. 15 On 20 February 2007, that is, about three days before her death, the deceased met one Trevor May at the Australian Hotel in Ballina. At that time she was distressed, having lost money on the poker machines and said that she was afraid to go home. Mr May bought the deceased a drink, they returned to his home where she stayed overnight. They had sexual intercourse and she left in the morning, stating that she was going to stay with her sister-in-law. 16 On 21 February 2007, the offender and the deceased visited his sister, Kerry O'Connor. When it was time to leave, the deceased started to cry and said "I'm scared Kez, I don't want to go home". Ms O'Connor said that she could stay and the deceased replied "No, I'll be okay". 17 Later that day, the deceased was at the Australian Hotel and was seen with a cracked lip. She told an associate that the offender had hit her. 18 On 22 February 2007, the deceased was at the Australian Hotel. She was seen to have what appeared to be dry blood in both ears. At about 11.00 pm on that day, 22 February 2007, a neighbour heard an angry male voice yelling from the direction of the home of the offender and the deceased. Another voice yelled back but the neighbour was unable to tell if the voice was male or female. The shouting lasted for about 20 minutes. 19 In the morning of 23 February 2007, the deceased went to a pharmacy to obtain her daily dose of methadone. She was observed by some staff at the pharmacy to have dried blood from one ear and to be "out of it" or "not with it". The pharmacist observed a faint bruise on the bridge of the deceased's nose. 20 Ms McMahon left the pharmacy and went to the Australian Hotel. She did not drink any alcohol but was observed to be distressed and later to be tired and "out of it" as if she was affected by drugs. A number of witnesses saw dried blood in the deceased's left ear and at least one of them tried to persuade her to go to hospital. A witness who offered to take her to hospital said she was crippled over and holding her left side. When asked what happened, she replied "Brad beat me up again and I don't want to go back to him again. I don't want to go back this time". She declined to go to the hospital. 21 At midday on 23 February 2007, the offender arrived at the Australian Hotel carrying their baby under his arm and assaulted the deceased by striking her on the face in front of witnesses. That assault was recorded on CCTV at the hotel. The CCTV footage was played on the Court television screen during the sentence hearing. Witnesses state that the offender was very angry and said to the deceased before hitting her that she had taken his tablets or "zanies". The deceased denied stealing them. The offender was also heard to complain that the deceased should be at home looking after their children. 22 Several people tried to intervene as the offender grabbed the deceased. One witnesses heard the deceased say "Don't hit me, I have a baby". A friend of the offender stepped in and took the baby out to the car. 23 The offender dragged the deceased out of the hotel. A bar employee called the police and ambulance. The employee went to the car and told the offender's father to wait for the police and ambulance but he drove away once the deceased and the offender were in the car. 24 The offender and the deceased went to the house of the offender's parents. She was slurring her speech and not giving responsive answers. Her sister, Deborah Bell, arrived home and agreed to take care of the two children that day. She saw that the deceased had dried blood in one ear. Ms Bell stated the offender was pleading and yelling at the deceased to wake up. Ms Bell said that the deceased could not hear him. 25 At 1.20 pm, the offender rang the Riverlands Alcohol and Drug Service and said that the deceased had double-dosed on methadone. He went on to say that he was unwilling to leave the deceased alone with the baby. The offender was advised to contact the Department of Community Services. The Riverlands worker spoke to the deceased. Her speech was slurred and she was unable to hold a conversation. The worker made an urgent referral to the Department of Community Services. 26 The offender and the deceased stayed at the home of the offender's parents until approximately 2.30 pm when they returned to their own home. At that time, the deceased required the offender's assistance to walk the short distance to their home. 27 At about 3.00 pm, Ms Bell went to the home to obtain items for the children. The deceased was seen slumped on the lounge, sweating and the offender was rambling. 28 During the course of the afternoon and evening, neighbours heard a male voice yelling at different times from the home. Occasionally, some witnesses heard a female voice. 29 About 3.00 pm, a witness outside the home heard a male voice yelling angrily and a soft female voice coming from the house. In response to something said by the female speaker, the male screamed "we can't 'cause we got no fucking money". At around 3.30 pm, a witness heard a male voice yelling for about 20 minutes. Occasionally a female voice responded. 30 At 3.15 pm, an officer from the Department of Community Services called on the offender. He told her he did not want the Department involved and the baby was safe. The offender's speech was slurred and the officer believed he was under the influence of something. The officer ended the call when she was unable to get responsive answers from him. The officer called police and asked them to check on the children. The officer contacted a number of family members and after confirming the children were safe, she rang the police and told them they were no longer needed to visit the premises. 31 At 7.12 pm, Ms Bell called the offender and asked if the deceased was okay. He replied that she had been getting "smashed and sleeping around". The offender talked about the baby and his daughter from another relationship. He was not making any sense and when Ms Bell asked to speak to the deceased, he continued to babble. Ms Bell heard moaning in the background which was similar to noises she had heard the deceased make earlier in the day. The phone went dead. Ms Bell tried to call back but could not get through. 32 At about 10.20 pm on 23 February 2007, a 000 call was received from the offender advising that his partner was dead and that she had been hyperventilating. 33 On the attendance of police and ambulance officers, the deceased was found lying naked on the lounge room floor with the offender attempting cardio pulmonary resuscitation. The ambulance officers confirmed that the deceased was dead and the offender was removed from the house and a crime scene established. 34 The offender told a police officer that the deceased had taken 60 mls of methadone and 9.00 am and then 60 mls of methadone by needle at 9.30. Police observed a number of injuries on the deceased and blood and faeces on the deceased and in various places in the house. They observed that the offender appeared affected by some substance but did not smell alcohol on him. 35 Police and other witnesses observed the offender's speech sounded affected, even when sober. Accordingly, it was difficult to gauge the degree of his intoxication when he was drug affected. However, the custody manager at the police station observed that the offender was well intoxicated. 36 When the ERISP was played in Court at the sentencing hearing, the offender's voice sounded somewhat drug-affected. 37 When interviewed, the offender told police that the deceased had left the house that morning to see a mutual acquaintance over a $10 loan. He received an SMS message advising that the deceased was at the Australian Hotel "off her face" and he went to collect her. He told police that they argued, she came home with him to his parents' home. 38 He told police that he assisted her to walk home and they continued to argue when they got home. He admitted slapping her at least twice to the face and that he slapped her right thigh. He said he was upset because of the deceased's sexual behaviour. 39 Around dark, the offender said that the deceased hyperventilated and defecated as he tried to assist her. He then took her to the bathroom where she undressed and he assisted her to bathe. 40 The offender told police that the deceased put on fresh clothes and they started arguing again. He went to make a cup of coffee. When he turned to look back, she had "gone white". He attempted cardio pulmonary resuscitation and then called 000. 41 The offender denied any intention to cause the deceased harm. He said the only injury he caused was a minor laceration to her right ear. He alleged that any other injuries on the deceased were the result of her falling off her bicycle. 42 The offender told police that the deceased had consumed at least 125 mls of methadone and 25 Zanax tablets and that the drugs contributed to her death. 43 He was arrested at 1.30 am on 24 February 2007 and taken to Ballina Police Station where he was charged with maliciously inflicting grievous bodily harm upon the deceased and assaulting her occasioning bodily harm. 44 He underwent forensic procedures at the police station. After receiving legal advice, he declined to participate in a further formal interview. 45 On 1 March 2007, he was charged with murder after police received advice from the pathologist, Dr Nadesan, who performed the autopsy. 46 The agreed statement of facts sets out the details concerning the crime scene, in particular, the lounge, main bedroom, hallway and bathroom. The lounge and main bedroom were said to be very untidy and items strewn about the floor and furniture. The children's bedroom, in contrast, was neat and tidy. 47 Blood stains were found in the lounge room, the main bedroom, hallway and bathroom. Faecal stains were observed in the lounge room and main bedroom. The blood and faecal stains were on the floors, furniture and other items in the room. 48 A drawer knob on a set of drawers in the main bedroom had a clump of long dark hair caught on it. 49 Burnt paper was found in the kitchen sink. Prescription drugs and needles were found in the house. 50 Next to the deceased, was a metal bar, approximately 50 centimetres in length and two to three centimetres in diameter. 51 The autopsy revealed the death was due to intra-abdominal bleeding. The Crown pathologist expressed the opinion that the acute subdural bleeding would have been fatal if the deceased had not died from the abdominal bleeding. 52 The pathologist retained for the offender agreed that the cause of death was intra-abdominal bleeding but disputed that death could have been caused by the subdural bleeding. 53 According to the agreed facts, the intra-abdominal bleeding and the acute subdural bleeding was due to "blunt trauma". 54 There were 76 separate injuries observed and the more severe contusions were located on the head and on the face. The age of some injuries varied in some in particular, the parchment injuries, were occasioned post-mortem. It was not possible to isolate the cause of all of the injuries. However, it was accepted that some of the injuries were caused by the offender. 55 The intra-abdominal bleeding was from a spleen injury. In the opinion of the pathologist, the bleeding would have caused drowsiness and then a loss of consciousness and then cardiac arrest. The deceased would have been bleeding from the abdomen for some hours and the spleen injury was fresh and recent. 56 The head showed multiple contusions scattered on the face and scalp with bleeding on both sides. 57 In the opinion of the pathologist, this was consistent with heavy blunt force such as punching or kicking. These injuries occurred at the same time as injury to the spleen. 58 The subdural haemorrhage was due to sheering forces due to multiple blunt trauma to the head. 59 The injuries, in the pathologist's opinion, were consistent with the deceased having been grabbed by the hair and her head being repeatedly banged into the floor, wall or such other hard surface. 60 Dr Judith Perl, pharmacologist, stated that the blood concentration of the deceased for the benzodiazepine, alprazolam (trade names for Zanax) was just above the upper end of the therapeutic range. 61 Dr Perl would have expected a high concentration if the deceased had consumed 25 tablets of Zanax (the offender having claimed that the deceased stole 25 of his Zanax tablets). 62 Dr Perl was of the opinion that none of the drug concentrations found in the deceased would have contributed to her death, although alprazolam and methadone would have produced some impairment. 63 Given the deceased's chronic use of methadone and benzodiazepines, Dr Perl would not have expected any significant impairment.

Psychiatric evidence 64 Mr R Jankowski of counsel, who appeared on behalf of the offender, tendered a medical report of Dr Olav Nielssen, psychiatrist dated 2 December 2008. Dr Nielssen interviewed the offender at Parklea Correctional Centre on 28 August 2008 and again by audio visual link on the date of his report, 2 December 2008. 65 The offender did not give evidence at the sentencing hearing. Accordingly, the source of the detail of the history of his background and earlier history is that to be found in Dr Nielssen's report at pp.5 to 6. 66 He provided a history of substance abuse and the development of an addiction including, in particular, the use of benzodiazepine medication. He claimed that addiction developed after he had met the deceased. 67 Dr Nielssen made a diagnosis of substance dependence and abuse disorder on the basis of the history provided to him. 68 The details of the history of drug taking is set out in his report (pp. 5, 7). 69 Dr Nielssen said there was no evidence from the history or the findings on examination of significant brain damage or of any underlying psychotic illness. He noted the offender's report of having experienced periods of depression. He made a diagnosis of adjustment disorder with depressed mood, or a clinically significant level of depression arising from a life event based on the offender's account of being depressed and his presentation at the time of the initial interview. The life event appeared to be the loss of the deceased and his subsequent imprisonment and separation from his children. 70 The offender reported to him that he had had a total of 10 mg of alprazolam on the day of the offence, which he claimed was 4 mg more than his usual dose. Dr Nielssen noted that the offender was able to give a fairly lucid account of the events to the police during an interview conducted the following day, although he reported to having no memory of having done so. 71 He expressed to Dr Nielssen the hope that he would do a violence prevention course and anger management as well as undertake further drug counselling before his release.

Offender's criminal history 72 His criminal history in New South Wales recorded offences commencing in the Children's Court on 12 December 1983 and thereafter a stealing offence in relation to which he was originally charged on 14 May 1990 and in 1993/1994 of offences of high prescribed concentration of alcohol, assault occasioning bodily harm and in 1995 an offence of malicious damage and later that year, a stealing offence, malicious damage and in 1998, an offence of common assault and two offences of malicious wounding and in the same year contravening an apprehended domestic violence order, further dishonesty offence, a stalking offence, contravention of an apprehended domestic violence order and common assault (two offences) and further contraventions of apprehended domestic violence orders. 73 In 1999, there were further offences relating to contravention of apprehended domestic violence orders (two in number) and in 2003, assault occasioning actual bodily harm and an offence of common assault. 74 The criminal history obtained from the Western Australian Criminal Records Department indicates that he was sentenced on one count of possessing a quantity of cannabis on 28 September 1989 for which he was subjected to a fine of $200.

Evidence from the offender's mother 75 At the sentencing hearing, the offender's mother, Rita Merle Stevens, gave evidence. She lived near the deceased and her son at the time of the offence. 76 Mrs Stevens said that she had seen her son in Grafton Gaol in recent times. She said, when asked as to how he felt in respect of the loss of the deceased that he "was shattered". In relation to his drug problem, he said to her that he wished to get away from drugs. She understood that he had been on methadone treatment before and whilst in custody. He expressed to her his wish to get off methadone and to get his life back on track. 77 Mrs Stevens said that she noted differences in him from what he appeared in February 2007. She said he was easier to talk to and referred to wanting to get on with his life, wanting to get off drugs, to do the right thing and to change his life. 78 Mrs Stevens said that she would always support the offender. She said her son had the support of her husband, who has visited him and that he was present in Court at the sentencing hearing. Mrs Stevens also said that the offender's brothers and sister had been supportive. His brother attended the sentencing hearing. She said that his siblings were supportive of the offender. She said that, after his release, she would accept him into her home providing he left drugs alone.

Victim Impact Statements 79 The following Victim Impact Statements were produced at the sentencing hearing:-

(1) Statement of William (Bill) McMahon dated 19 October 2008 (Exhibit B).

(2) Statement of Jacky Titmus dated 26 November 2008 (Exhibit C).

(3) Statement of Renee Edwards dated 1 December 2008 (Exhibit D). 80 Each of these statements reveals the personal impact that has resulted from the death of Ms McMahon. The statement of Renee Edwards and the statement of William McMahon, expressed in restrained terms, provide an insight into the emotional and psychological pain and suffering that they have experienced and will continue to experience as parents. 81 Similarly, the statement of Ms Titmus, Ms McMahon's sister, who, with her partner, are the primary carers of Ms McMahon's two young children expresses her feeling of being very fortunate to watch the children develop and enjoy life but expresses her sadness that the deceased should have been the one experiencing this for herself. Ms Titmus, additionally, conveyed the emotional impact upon the deceased's son, who is now aged six years. 82 In having regard to the Victim Impact Statements to which I have referred, I am bound to consider them in accordance, and I do, with those principles that have been enunciated by the Court of Criminal Appeal in Regina v Previtera (1997) 94 A Crim R 76 at 86. See also Regina v Fernando (1997) 95 A Crim R 533 and other cases.

(a) Matters directed to provocation 83 Mr Jankowski provided detailed written submissions on sentence and extensive oral submissions on behalf of the offender. 84 He contended that the evidence established provocation at "not an insignificant level". In that respect, he relied upon particular answers given during the course of the record of interview of the offender and specific matters contained in the statement of facts:-

• The particular answer given in the interview includes reference to the offender's account of having received an SMS message that the deceased was in the hotel "off her face" and his reference to having been left with the baby.

• That the deceased had told him that she had stayed shortly before at a caravan park with a male person causing him to hold suspicions of infidelity.

• An account he claimed the deceased gave him in relation to what he termed "orgies" and an ensuing argument.

• The anger he said he had experienced at the deceased's alleged disclosures to him on the evening of her death.

• A statement attributed to the deceased to the effect that she would turn to prostitution.

• Complaints that the deceased was not home enough and was using drugs instead of caring for the children.

• The fact recorded in the statement that the deceased had recently stayed with a male after leaving the hotel and having sexual intercourse with him. 85 Mr Jankowski submitted that:- "… The violent conduct of the offender towards the victim was a result of:- (a) The offender losing self-control by virtue of the deceased admitting to having been unfaithful and her persistent failure to look after the children of the relationship, in particular, the youngest child. (b) In considering the offender's loss of self-control, the Court may take into account the offender's own level of drug affectation." 86 Mr Jankowski identified the evidence which he contended supported the offender's drug affectation. These included his statements to police that he had consumed Zanax, the fact that his speech was slurred and that the officer believed he was under the influence of something, and the evidence from Ms Bell that he was not making any sense when she spoke to him. 87 In his submissions, Mr Jankowski referred to the principle that facts to be taken into account on sentence in a way that are adverse to the interests of the offender must be established beyond reasonable doubt. 88 Reference was made to the fact that the crime of manslaughter comprehends a range of circumstances and the range of culpability is wide. Accordingly, it is not possible, he submitted, to establish any "sentencing tariff" which can be applied to other cases. 89 Mr Jankowski submitted that the findings that would be made as to the following:-

• That the cause of death was the intra-abdominal bleeding arising from an injury to the spleen. The bleeding was occasioned by blunt trauma such as punching or kicking. This could not be equated to the same category of conduct where a weapon was used and which would leave little doubt that death was not only foreseeable, but likely.

• That the head injuries were sustained in accordance with the explanation given by the deceased. This included injuries to the head whilst he was dragging the deceased to the bathroom.

• That the numerous injuries identified at autopsy could not be isolated as to cause and some were post-mortem. Only some of the injuries were occasioned by the offender.

• That the offender was affected by a self-induced overdose of prescribed medication. This, it was contended, exacerbated his loss of control when provoked by the deceased.

• That the offender was very remorseful about the loss of the deceased's life and the loss to the deceased's family.

• That the offender suffers from a clinically significant level of depression, in part, from the loss of the deceased.

• That he has good prospects of rehabilitation and a supportive family.

• That Dr Nielssen did not consider that the offender would again abuse benzodiazepine medication.

• That the offender has been constructive whilst in custody and he wished to undertake violence prevention courses and anger management courses as well as drug counselling.

(b) The plea of guilty 90 The plea of guilty was entered on 7 October 2008. However, it is said that negotiations in respect of the plea to manslaughter had been ongoing for some weeks before the trial date. The offer of a plea to manslaughter in full satisfaction of the indictment was said not to have been forwarded by the Crown until the last working days before the trial. 91 Mr Jankowski submitted that, whilst the offender is not entitled to a 25% discount in accordance with the principles for his plea in Regina v Thomson & Houlton [2000] NSWCCA 309, he would be entitled to a discount of 20%, given the circumstances of when the plea could be and was entered and the significant utilitarian value of the plea.

(c) Remorse 92 The submission was that the offender expressed remorse to Dr Nielssen and that his attempts at reviving the deceased as recorded in the record of interview also demonstrates remorse. 93 A number of specific answers in the record of interview are set out in the written submissions. 94 I will return to that aspect shortly and I note the specific answers in the record of interview which are set out in the submissions.

(d) Aggravating and mitigating factors: s.21A, Crimes (Sentencing Procedure) Act 1999 95 The submissions advanced on behalf of the offender include:-

(1) That not all of the injuries can be said to have arisen from the offender's actions and are not established as having been causally related to the deceased's death. In particular, he denies the head injuries were occasioned by him. It is acknowledged that the injuries caused by the offender are relevant to objective seriousness rather than constituting a matter of specific aggravation.

(2) I note that the actual violence of the offence referred to in s.21A(2)(b) is an element of the offence and, in this case accordingly, it cannot be taken into account as an aggravating factor. I have, in the course of these remarks, referred to the evidence of violence, but that is only as a matter relevant to the objective seriousness of the offence. The factor of violence cannot be taken into account in any additional way in imposing sentence by reason of the fact that it is already taken into account in the assessment: s.21A(2).

(3) Similarly, the injury (in this case the death of the deceased) referred to in s.21A(2)(g) of the Act cannot be the subject of additional regard as an aggravating factor by reason of the fact that death is obviously an element of the offence: Williams (supra) at 39.

(4) There was no evidence to suggest that the offence was the result of a planned or organised activity. It was put that the violence inflicted upon the deceased by the offender occurred in the context of an escalation of emotion caused by the elements of provocation referred to in the submissions. In addition, the loss of self-control was exacerbated by the excessive use of prescribed medication.

(5) It was submitted that the offender had reasonable prospects of rehabilitation and was unlikely to re-offend. Reliance was placed in that respect upon Dr Nielssen's report in that respect. 96 Reference was made to the offender's long history of drug use and his consumption of an excessive amount of Zanax on the day of the offence. 97 In relation to subjective matters, reliance was placed upon the history contained in Dr Nielssen's report to which I have earlier referred. 98 It was submitted that the separation of the offender from his children, as well as impacting on other members of the family, must also have produced suffering of a significant loss to the offender. 99 Reliance was also placed upon Dr Nielssen's diagnosis of disorders in the offender. 100 In relation to the term of the non-parole period to be determined in sentencing the offender, it was submitted that there ought to be a departure from the statutory ratio based on a finding of special circumstances which, it was contended, was justified upon the basis:-

• Reasonable prospects of rehabilitation as evidenced by the offender's efforts to rehabilitate himself in custody.

• The need for the offender to receive assistance in overcoming his substance abuse and addressing relapse issues such that a longer period on parole with supervision is warranted. 101 He tendered Exhibits 2 and 3 which are relevant to the first of those two issues. 102 In relation to the offender's criminal history, it was submitted that the nature of the offences are significantly less serious than the present offence. The last offence involving any violence, it was noted, occurred in August 2003, some three and a half years before the subject offence. Offences of dishonesty, it was said, are consistent with the offender having a significant drug problem. The antecedents of the offender, it was contended, would not constitute matters of aggravation or mitigation within the meaning of s.21A(2), (3) or (5) of the Crimes (Sentencing Procedure) Act. 103 Mr Jankowski provided a copy of the Public Defenders' summary of cases in respect of offenders who entered pleas of guilty or after trial in cases involving manslaughter on the basis of provocation.

Submissions by the Crown 104 The Crown submitted that:-

• It is clear that there was an ongoing and lengthy period of sustained violence on the deceased.

• That that would be taken into account in ultimately assessing the role provocation should play in the sentence to be imposed when examining the degree of violence or aggression displayed and leading to the deceased death in evaluating the objective gravity of the offence. 105 In relation to the general approach to be taken on the issue of provocation, the Crown submitted that where provocation was at a high level, then the gravity of the offence was lower. The time between provocation and the loss of self-control may have the tendency of reducing the objective gravity. Where the time interval is shorter, then the gravity of the offence may be reduced. 106 The Crown observed that in relation to the incident on 20 February 2007, the gap in time was such that, to some extent, it would make provocation less effective. 107 The Crown further observed that, as to the degree of violence and aggression displayed at the time of the offence, the more excessive the violence, the greater the objective gravity of the offence. 108 The Crown Prosecutor, in oral submissions, submitted that "the degree of violence in this case was extreme and the gravity of the offence was extreme and the provocation was low". 109 For reasons stated in these remarks, I agree with that submission. 110 The discrete factual matters arising in respect of provocation include the following:-

(1) The evidence that establishes that the deceased, over a lengthy period, including the period between 20 February 2007 and the time of her death, was affected and impaired by excessive drug use.

(2) That the offender was, to a degree, impaired by the consumption of drugs, having taken an amount somewhat in excess of his prescribed three tablets a day. He claimed to police that he had consumed five tablets that day.

(3) The long and substantial history of marital discord.

(4) The evidence that establishes that the offender had acted violently towards the deceased giving rise to some visible signs of injury.

(5) The behaviour of the deceased which includes a failure or inability to attend to the welfare of her baby, the impact that had upon the deceased, her drug affected stated and her leaving the home and attending at the local hotel.

(6) The incident of infidelity earlier referred to of the deceased and the extent to which that affected the offender. 111 The agreed statement of facts does establish that each of the matters I referred to in the preceding paragraph as operative factors in the days leading to and including the date of the deceased's death. 112 In determining the nature and the extent of the provocation, it is clear that the deceased's drug use had rendered her incapable of discharging her role as a mother and it impaired her ability to lead a normal and rational domestic existence. It is clear on the evidence that her disabled and dysfunctional condition did contribute to the dynamics and tension within the household and that it did have an impact upon the offender. 113 Although the provocation arises in relation to two factors, namely, the issue of unfaithfulness and the offender's perception of the deceased's dereliction of duties as a mother, I am not satisfied that the first was as significant a factor as the second. 114 A reading of the detailed history obtained by Dr Nielssen in his report records that the offender "understood" that the provocation was based upon the deceased's continued drug abuse and the effect that had on her ability to care for the two infant children and to "his suspicion that she had returned to prostitution". There is no reference, otherwise, in the report to any particular circumstances said to have been associated with the deceased's infidelity that operated upon the offender in his account to Dr Niellsen. It is clear that Dr Nielssen spent some considerable time obtaining the relevant history from the offender when he interviewed him. There is a detailed account of the drug history of the deceased and of the offender and other matters, but there is no detail as to any facts said to have been discovered by the offender or the impact that it is said to have had upon him on 20, 21 or 23 February 2007 arising out of that matter, that is, the claimed infidelity. On the occasion on which Dr Nielssen interviewed the offender, one would have expected would have elicited any material factors that operated in any significant way upon him. The only reference in this regard is an expression of his "concern" that, by reason of her drug affected stated, she may have been taken advantage of sexually. 115 The record of interview, however, does include some account given by the offender in relation to, what is said to be, the deceased's infidelity. I refer, in that respect, to the lengthy answer to question 8 and the answers to questions 52, 68 and 77 to 82 in the ERISP. 116 The record of interview in those answers does provide some support for the fact that in the victim's alleged disclosures to the offender related to a matter of infidelity, however, according to his answer to questions 77 and 82, he had "busted her", told her to pack her bags and that he packed her bags "three days ago" following which he said she unpacked them. Accordingly, the provocation, on his account, initially arose on or about 20 February 2007. 117 The answers provided in the interview refer to the fact that, on his account, there had been further discussion about the matter of infidelity on the evening of the deceased's death. On that basis, there is some evidence that the matter was revived and was capable of reigniting the offender's anger. 118 The history given to Dr Nielssen and certain answers in the record of interview go to support the proposition that the offender was driven to anger by the combination of the deceased's drug abuse, her perceived failure to undertake her duties as a mother, in particular, to the new baby, her leaving the home and attending at the local hotel and that he was left with the responsibility to look after the baby. 119 My reference to the perceived inability of the mother is a reference to his perception of her behaviour, which is clear resulted from her impairment. 120 In evaluating these matters, however, it is clear that the deceased's condition was such and it would have been apparent to the offender, even with his drug issues, that the deceased's impairment was such that she was a very ill woman. It would have been apparent that, rather than being wilful in her neglect of her motherly duties, she was simply incapable of functioning at anything like a normal level. 121 In accepting the facts as revealed by the offender in his answers during the record of interview, those answers are to be assessed with some degree of caution. It is apparent throughout the interview that the offender was intent on playing down his culpability and, in endeavouring to account for the nature and extent of the injuries, his account is simply not believable. He would only admit to having slapped her twice with an open hand on the face and once on the thigh. Neither basis - the supposed slaps or supposed bicycle accidents - can account for the nature and extent of the deceased's injuries. 122 The offender's criminal history does make reference to matters of violence in the offender's history although, as Mr Jankowski has observed, he has not in recent years been convicted of any offence of violence. The reference in the evidence to his desire to undertake an anger management course is commendable and does indicate that he too perceives that his aggression or anger is a problem and it needs controlling. 123 As I have earlier said, the question of violence is relevant to the objective nature of the offence. The agreed statement of facts refer, in particular, to blood stains not confined to one room or part of a room, but that they were found in four particular areas of the house, being the lounge room, the main bedroom, the hallway and the bathroom. Blood and faecal stains were found on the floors, the furniture and other items in the rooms and the finding of a clump of long dark hair caught on the drawer knob is consistent with an extremely violent attack by the offender upon the deceased. 124 Given the conflict in the medical evidence that death could be found to have been due to the intra-abdominal bleeding arising from an injury to the spleen. It was submitted that the bleeding was occasioned by blunt trauma such as punching or kicking. I have earlier referred to the evidence that indicates that the deceased was subject to significant injuries and trauma indicating multiple assaults upon her. I do not accept the submission that the immediate cause of injury, namely, injury to the spleen, is a factor that indicates the seriousness of the offence is towards the lower rather than the higher end of the spectrum. The multiple injuries sustained by the deceased is evidence of a high level of aggression and violence by the offender towards the victim in the moments before the fatal injury that led to her death was sustained. 125 These observations are reinforced by the nature and extent of the multiple injuries found at autopsy. I accept that not all of the injuries can be established to have been occasioned during the attack upon the deceased that led to her death on the day of her death, but there is no evidence from persons who observed the deceased earlier in the day that she had the multiple contusions on the face and scalp. The fact that the subdural haemorrhage was due to a sheering force due to multiple blunt trauma is consistent with the offender repeatedly banging the victim's head into the floor, wall or other similar hard surface. Whilst the plea evidences that provocation played a role, the level of extreme violence was wholly disproportionate to the ongoing circumstances that had been in operation for some considerable time prior to the death of the Ms McMahon.

Principles 126 It is necessary, in the light of the evidence adduced and the submissions made, to determine the sentence that is appropriate to the particular crime, having regard to the gravity of the offence viewed objectively, as without such an assessment, the other factors requiring consideration before arriving at the proper sentence to be imposed cannot properly be given their place: Regina v Dodd (1991) 57 A Crim R 349 at 354. 127 Apart from limited circumstances such as the youth or mental incapacity of an offender, public deterrence is a matter of importance in punishment for criminal offences and the subjective considerations relating to the particular offender, no matter how persuasive they be, are necessarily subsidiary to the duty of the courts to see that the sentence imposed will operate as a powerful factor in preventing the commission of similar crimes and in particular, the domestic situation by those who may otherwise be tempted by the prospect that only light punishment will be imposed: Regina v Alexander (1994) 78 A Crim R 141 at 142. 128 The factors to be considered in determining an appropriate sentence in a provocation case were referred to by the Chief Justice, Sir Laurence Street, in Regina v Hill (1981) 3 A Crim R 397. There, the Chief Justice made a number of observations, including the following:-

• The circumstances leading to the felonious taking of human life being regarded as manslaughter vary infinitely.

• At the start, it should be recognised, the Chief Justice stated, 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.

• Courts 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 human tendency is necessarily attended by the utmost caution as 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. 129 In Alexander (supra), Hunt CJ at CL (at 144) identified three particular matters to be taken into account in provocation manslaughter cases. They are:-

(1) The degree of provocation offered (or, alternatively, the extent of the loss of self-control suffered), which, when great, has the tendency of reducing the objective gravity of the offence.

(2) The time between the provocation (whether isolated or cumulative in its effect) and the loss of self-control, which, when short, also has the tendency of reducing the objective gravity of the offence.

(3) The degree of violence or aggression displayed by the offender, which, when excessive, has the tendency of increasing the objective gravity of the offence. See also Regina v KMB [2005] NSWCCA 185 at [11].

Offender's drug addiction 130 Generally, drug addiction does not mitigate an appropriate sentence being imposed on an offender. There are many decision that support that proposition: see Regina v Spiero (1979) 22 SASR 543 at 548 to 549 and, as to the role of drug addiction in sentence, see Regina v Henry (1999) 46 NSWLR 346 at 381 to 387 per Spigelman CJ. 131 In the present case, in counsel's written submissions on behalf of the offender (p.5), it was contended that one factor in the offender's loss of self-control was the effect of prescribed and not illicit drugs. In that respect Mr Jankowski submitted:- "2. In considering the offender's loss of control, the Court may take into account the offender's own level of drug affectation." 132 Later in the written submissions (p.10), it was stated:- "• The offender was affected by a self induced overdose of prescribed medication which exacerbated the offender's loss of control when provoked by the deceased." 133 The offender's history of drug use is referred to in the written submissions (p.16). This refers to the offender's use of cannabis at the age of 12 and during his adult life, the use of hallucinogenic drugs in his teenage years and that he first tried heroin in his early teenage years and is said to have become dependent on that drug at the age of 17 or 18. It is noted that heroin usage ceased after enrolling in a methadone programme in 1998. In 2000 he commenced to use amphetamines he claimed and he regularly used them until his arrest for the present offence. Reference was made to two incidents referred to by the offender what were claimed to be deliberate drug overdoses in suicide attempts between 1998 at 2000. 134 The submissions refer to the offender's admission that on the day of the offence he had taken an excessive amount of Zanax. 135 The offender told Dr Nielssen that on the day he took five, two mg tablets of alprazolam (Zanax). I note that this is consistent with information provided by the offender to police (ERISP, Q15). In the interview, he told police that his normal dose was three a day (Q17). When asked at that point by police how he felt, whether he was okay and whether he could understand the conversation, he replied "Yeah. Oh. It doesn't dope me out, you know" (Q19).

Consideration 136 In determining the appropriate sentence to be imposed in this case, it is necessary to apply the provisions of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act"). 137 Section 3A provides that the purposes for which a Court may impose a sentence on an offender are as follows:-

(1) To ensure that the offender is adequately punished for the offence.

(2) To prevent crime by deterring the offender and others from committing similar offences.

(5) To make the offender accountable for his or her actions.

(7) To recognise the harm done to the victim of the crime and the community. 138 Accordingly, it is accepted that the purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform: Veen v The Queen (No 2) (1988) 164 CLR 465. The High Court in that case stated that purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. 139 The provisions of s.21A of the Sentencing Act provide that in determining the appropriate sentence for an offence, the Court is to take into account the aggravating and mitigating factors referred to in the section that are relevant and known to the Court and any other objective or subjective factor that affects the relative seriousness of the offence. 140 I will return to the relevant factors in the present case. I note at this point, in accordance with s.21A(2), "the Court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence". 141 The effect and policy behind such a limitation is self-evident: there should be no double counting of aggravating features of an offence: Regina v Wickham [2004] NSWCCA 193. 142 Dr Nielssen, in his report, referred to treatment which the offender had for depression and that, in this respect, he had been prescribed a relatively low dose of an anti-depressant medication (a benzodiazepine - Zanax) and that he was taking that medication around the time of his arrest. 143 Dr Nielssen explained that the reported 10 mg of alprazolam (Zanax) was four mg more than his usual dose. Dr Nielssen noted that he was able to give a lucid account of events to police during an interview conducted the following day, although he did not have any memory of doing so. Dr Nielssen explained that this was by reason of the fact that intoxication with benzodiazepines is similar to intoxication with alcohol. 144 On the evidence, it is clear and I find accordingly, that the offender, on the day of the offence, had consumed more than the prescribed dose of Zanax and that his apparent condition during the course of the interview would be explained by him having done so. 145 Accordingly, this is a case in which the offender had, to a point, been affected by prescribed medication rather than by an illicit drug, the evidence indicating that he had not, in fact, consumed prohibited drugs in the period immediately prior to the offence. 146 The extent to which the Zanax affected the offender is not on the evidence something that is capable of any precise or effective determination for the medical evidence was not directed to that aspect. The offender has the onus of establishing, on the probabilities, that the effect of the Zanax did affect or impact on the applicant's loss of self-control. The evidence does not enable a determination favourable to him in that respect, although I do take into account the fact that the Zanax did have some impact or effect upon him as at the time of the commission of the offence. To what extent, as I have said, is not clear on the evidence. I note that the evidence indicates that the offender has acted in the past aggressively and violently suggesting that he has had a problem with self-control. 147 A comparison of sentences in other cases is, of course, not determinative for each case depends very much upon its own facts. With that important reservation, references to sentences in similar cases may, however, be instructive at least as a general guide to some degree. 148 In Regina v Williams [2005] NSWCCA 99, the Court of Criminal Appeal (Tobias JA, Buddin and Hall JJ) considered the severity of sentence imposed in a domestic manslaughter in which the sentence imposed of 14 years imprisonment with a non-parole period of 10½ years was said to have been excessive. In that case, the appellant was found guilty by a jury of manslaughter (having been charged with murder) in respect of the death of his de facto wife. They had had a relationship for some six months and the evidence revealed that the relationship had, on a number of occasions, involved a degree of violence. The appellant, in that case, had a history of being short tempered even when unaffected by drugs. He had a history of illicit drug taking which included amphetamines, the effects of which included hostility and aggression leading to violence. 149 On the date of the offence in that case, there was evidence of physical aggression by the deceased towards the appellant and he was sentenced upon the basis that the jury verdict was founded upon manslaughter by reason of her provocation. The relevant material revealed provocative conduct on the part of the deceased towards the appellant prior to the day on which the fatal incident occurred. There was evidence that the deceased had injured him in the course of the altercation . 150 The Court of Criminal Appeal in that case found that the case was one of considerable objective gravity and that nothing less than a sentence of appropriate severity could be countenanced. However, having regard to findings made in that case, the sentence was reduced to a term of imprisonment of 12 years with a non-parole period of nine years. 151 The level of violence by the appellant in Williams (supra) was at a very high level and no allowance was or could have been made in that case for any effect that the illicit drug taking, in particular, had upon him. A matter, however, that was favourable to him was the fact that the provocation was significant involving, as it was found, violence by the deceased which was an aspect of the provocation on the facts of that case. 152 Whilst the present case has similarities to that in Williams (supra), there are two matters upon which it may be differentiated. The first is that the offender here was not affected by taking prohibited drugs but was, at the relevant time, taking a prescribed medication. Whilst that medication, as I have earlier stated, can be taken as having affected the offender in som way, it is not possible to arrive at any conclusion as to the extent or degree to which it impaired his capacity for self-control and contributed to it. However, as I have earlier stated, I have proceeded in this matter upon the basis that it did have some effect in that respect. 153 The counterbalancing factor is, however, the provocation. In Williams (supra), the evidence established the provocation was, at least, at a moderate level and possibly somewhat higher than that. In the present case, as I have stated, the level of provocation was at a relatively low level, a factor to be taken into account in evaluating the objective seriousness of the offence. 154 In determining the appropriate sentence in the present case it is necessary to have firmly in mind that the maximum penalty prescribed by the legislature for the offence of manslaughter is 25 years imprisonment. 155 It is necessary to have regard to the gravity of the offence. As the Court of Criminal Appeal said in Regina v Blacklidge (NSW Court of Criminal Appeal, unreported 12 December 1995):- "The Courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of human life. That is a starting point for consideration of the appropriate penalty and a key element in the assessment of the gravity of the objective circumstances of the case." 156 At the forefront of an assessment of the objective gravity of the offence is the fact that there has been a taking of human life with intent to kill or an intent to inflict grievous bodily harm. The gravity of the offence is moderated by the fact, as I have found it in the present case, that the death was not planned and that there was a measure of provocation offered by the deceased in the period prior to and including the day on which the fatal incident occurred. 157 These considerations must, however, take their place, amongst other factors in the sentencing process. There was little in the present case, however, that the offender could advance of a subjective nature that would ameliorate the otherwise appropriate sentence. 158 In relation to the matter of contrition, there is no direct evidence in the present proceedings from the offender himself in relation to any remorse of contrition that he holds. I have not, in that respect, overlooked the references to the record of interview referred to in the written submissions of counsel for the offender (paragraph 5). I do take into account that his mother's evidence does indicate that the death of the deceased has had a significant impact upon him and I can infer, at least to some extent, that that includes an element of remorse as well as the realisation by him of the significance of the deceased's death. 159 The assessment of the nature, extent and time period over which provocation is said to have existed cannot be determined by any direct account given by the offender, for he did not give evidence at the sentencing hearing.

Special circumstances 160 I do not consider that this is a case in which a finding of special circumstances should be made. There is little evidence on the offender's prospects of rehabilitation. I do not overlook the evidence given at the sentencing hearing nor Exhibits 2 and 3. I have had regard to the evidence given by his mother and the report of Dr Nielssen, although Dr Nielssen does not directly assist on this issue so far as the offender's future rehabilitation prospects are concerned. The evidence of remorse primarily comes from Dr Nielssen's report and some references in the record of interview. Whilst it was submitted that a longer period of parole would be required in order to supervise and support the offender on his release, I do not consider that the evidence would justify a finding of special circumstances and, accordingly, I decline to do so. 161 In respect of the plea entered by the offender, I consider that the offender is entitled to a 20% discount for his plea of guilty. 162 I decline to make a finding of special circumstances. 163 The offender was arrested at 1.30 am on 24 February 2007. I propose to backdate the sentence to commence on 24 February 2007. 164 I sentence the offender to a term of imprisonment with a non-parole period of six years and seven months to commence on 24 February 2007 and to expire on 23 September 2013 and to a balance of term of two year and two months to commence on 24 September 2013 and to expire on 23 November 2015. The earliest date upon which the offender will become eligible for release on parole will be 23 September 2013. **********

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