Villalon v R

Court of Criminal Appeal (NSW)|2015-08-03|Before: Gleeson JA, Adams J, Fagan J, Price J

Solicitors: Legal Aid New South Wales (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2012/67960 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law - Criminal Citation: [2014] NSWSC 1261 Date of Decision: 18 September 2014 Before: Price J File Number(s): 2012/67960

Judgment

GLEESON JA: The applicant, Michael Villalon, seeks leave to appeal against a sentence imposed upon him in the Supreme Court by Price J on 18 September 2014 for the manslaughter of his stepfather, Keith Owen Chaney.
The deceased died at Mascot on 28 February 2012 as a result of a stabbing by the applicant with a knife. The applicant was charged with murder. The jury returned a verdict of not guilty on that charge, but guilty of manslaughter.
His Honour sentenced the applicant upon the basis, consistent with the verdict, that at the time he killed the deceased he was substantially impaired by an abnormality of mind arising from a pre-existing mental condition, and the impairment was so substantial as to warrant the applicant's liability for murder being reduced to manslaughter: s 23A Crimes Act 1900 (NSW).
The maximum penalty for manslaughter is imprisonment for 25 years.
His Honour imposed a sentence of 8 years imprisonment with a non-parole period of 5 years 6 months commencing on 28 February 2012 and expiring on 27 August 2017, with a balance of term of 2 years 6 months commencing on 28 August 2017 and expiring on 27 February 2020.

Relevant facts

The applicant did not give evidence during the trial or the proceedings on sentence. The following summary of the facts is taken from his Honour's findings on sentence, which were not challenged on appeal.
The applicant lived with his mother and the deceased from 2009 when he came to Australia from the Philippines. At the time of the offence, he was aged 27 years. He was aged 30 at the time of sentence. The deceased was antagonistic towards the applicant; his behaviour included nagging, threats, physical assaults, inappropriate behaviour and making the applicant watch pornographic videos and convert them into CDs. The applicant was particularly concerned about the deceased's inappropriate conduct towards his younger sister. The applicant had been experiencing psychotic symptoms from 2009, including beliefs that the deceased had buried a lady under the house and was contaminating water in the house.
On 28 February 2012, a dispute arose between the applicant and the deceased about the bathroom door and the front and back doors of the house being left open or closed. The deceased and the applicant had often argued about the doors. The deceased went to touch the applicant in the chest area, and the applicant pushed him back. The applicant then struck the deceased with a figurine and then stabbed the deceased with a knife a number of times in the abdomen, then below the right eye, penetrating through the spinal cord, which was partly severed. This was the fatal blow due to consequent neurological shock. The applicant used a second knife to inflict further wounds to the deceased's chin and neck. The applicant also used a hammer to inflict seven lacerations to the top of the deceased's head. Three of the lacerations involved skull fractures.
The applicant was arrested on 28 February 2012, and charged with murder shortly thereafter.
On 12 December 2012, the applicant's solicitor wrote to the Office of the Director of Public Prosecutions enclosing a report of Dr Bruce Westmore dated 12 June 2012 and advised of the applicant's instructions to plead not guilty to murder but guilty to manslaughter on the basis of substantial impairment. In his report, Dr Westmore expressed the opinion that the applicant was "suffering from an abnormality of the mind (a paranoid psychotic illness) at the time of the homicide".
The applicant confirmed his offer to plead guilty to manslaughter at the committal hearing in the Local Court on 2 April 2013. On 27 May 2013 the Director of Public Prosecutions informed the applicant's solicitor that his offer to plead guilty to manslaughter in satisfaction of the murder charge had been refused. On arraignment in the Supreme Court on 7 June 2013 the applicant pleaded not guilty to murder but guilty to manslaughter.
The applicant indicated his plea of guilty to manslaughter before the jury in his first trial, which commenced on 22 October 2013 but the jury was discharged on 7 November 2013 being unable to agree on a verdict. The applicant again indicated his plea of guilty to manslaughter before the jury in his second trial, which commenced on 19 May 2014.
Three forensic psychiatrists gave evidence during the trial. Dr Allnutt, Dr Westmore and Dr Furst all agreed that the applicant was suffering from an underlying psychotic illness at the time that he killed the deceased. Dr Allnutt was of the opinion that this was either a schizophreniform disorder or schizophrenia, as a result of which the applicant experienced an abnormality of the mind including persecutory beliefs, referential thoughts and auditory phenomena. The illness was undiagnosed at the time of the offence. It impacted on the applicant's capacity to understand events, leading to illogical and erroneous interpretation of some events and the applicant believing that the deceased was conspiring with others to have him harmed in a serious manner. On balance, Dr Allnut considered that the symptoms had commenced a number of years earlier.
Dr Westmore was of the opinion that the applicant suffered from a paranoid schizophrenic illness or a psychosis at the time of the offence, his mental state having deteriorated since 2009, and the abnormality of mind would have impaired the applicant's capacity to think normally. He and Dr Furst were both of the opinion that the applicant had a lack of capacity to control himself. Dr Furst's primary diagnosis was one of schizophrenia.
As already mentioned, the jury returned a verdict of not guilty on the charge of murder, but guilty of manslaughter.

Proceedings on sentence

At the sentencing hearing on 6 June 2014, the Crown provided a written outline of submissions on sentence, but did not relevantly supplement those submissions. On the issue of the discount on sentence for the guilty plea, the Crown's written submissions referred to the timing of the applicant's plea of guilty to manslaughter in the Local Court. The Crown submitted, without articulating any reasons, that the discount on sentence should be assessed in the lower part of the range of 10% to 25%. Notably, the Crown did not submit that there had been any material delay in the applicant's plea. Nor did the Crown make any submission concerning the utilitarian value of the plea.
The applicant submitted both in writing and orally that a discount of 25% should be allowed for his guilty plea (tcpt 6/6/14 at 3, lines 16-29).
The sentencing hearing was part heard and continued on 18 July 2014 and concluded on 28 August 2014. On that day, senior counsel then appearing for the applicant drew his Honour's attention to the Crown's written submissions on the discount for the guilty plea to manslaughter.
Counsel repeated her previous submission that a discount of 25% was warranted, given that the applicant had indicated his plea of guilty to manslaughter in the Local Court. Counsel further submitted that the only reason that plea was not formally entered (in the Local Court) was because the Crown had not yet made a decision as to whether or not to accept that plea in satisfaction of the murder charge (tcpt 28/8/14 at 2, line 42 - 3, line 6). The Crown, in reply, did not advance any matters in support of its earlier written submissions (tcpt 28/8/14 at 3, line 42 - 6, line 13).

The judge's reasons

His Honour found that the applicant's attack was "deliberate, brutal and sustained" and that the applicant intended to kill the deceased: at [16].
His Honour referred to the evidence of the three psychiatrists mentioned above. He found that the jury was satisfied that at the time of the offence, the applicant's "capacity to understand events, to judge whether his actions were right or wrong and to control himself was substantially impaired by an abnormality of mind arising from an underlying schizophrenic illness ... so substantial as to warrant (applying community standards) his liability for murder being reduced to manslaughter": at [23].
His Honour took into account that the applicant's substantial impairment reduced his moral culpability for the killing: s 21A(3)(j) Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act), but neither negated his moral culpability entirely, nor entirely excused his deliberate acts which were committed with an intention to kill: at [24].
His Honour found provocation by the deceased a mitigating factor to be taken into account (at [25]), as was the fact that the offence was not planned but committed on the spur of the moment: at [26]. Nonetheless his Honour found that the offence was objectively serious as the applicant unlawfully took the deceased's life: at [26].
His Honour found and took into account the applicant did not have a record of previous convictions and was a person of good character: at [27]. He found that by his plea of guilty to manslaughter, the applicant had accepted responsibility for his offending, but did not find on the evidence that the applicant was remorseful for his crime: at [28].
His Honour found the utilitarian value of the applicant's plea to be 20% and gave the following reasons at [29]: Whilst the proceedings were in the Local Court, the offender's solicitor wrote on 12 December 2012 to the Director of Public Prosecutions enclosing a copy of Dr Westmore's report and advised that the offender intended to plead not guilty to murder but guilty to manslaughter on the basis of substantial impairment. The offender's intention to plead guilty to manslaughter was confirmed at the committal hearing on 2 April 2013. The Director of Public Prosecutions rejected the offender's offer to plead guilty to manslaughter in full satisfaction of the indictment. Upon arraignment on 7 June 2013, the offender pleaded not guilty to murder but guilty to manslaughter which he confirmed before the jury in the first trial and the trial before me. In these circumstances, I assess the utilitarian value of the plea to be 20 per cent.
His Honour gave little weight to general deterrence having regard to the applicant's schizophrenic illness: at [30]. His Honour was satisfied that the applicant's risk of reoffending was low, provided he continued to take his medication and adhered upon release to the proposed psychiatric treatment plan: at [37]. His Honour gave modest weight to the need for specific deterrence noting that the offender's mental illness did not in the circumstances eliminate the need for specific deterrence: at [37].
His Honour found special circumstances existed, based on the applicant's need for ongoing psychiatric treatment, to justify a departure from the statutory proportion of 25% between the sentence and the non-parole period fixed by s 44(2) of the Sentencing Act: at [39].
In imposing the sentence referred to above, his Honour said: 39. I find that special circumstances exist that justify a variation in the statutory ratio between the non-parole period and the balance of the term of the sentence being the offender's need for ongoing psychiatric treatment. I have determined that a non-parole period of 5 years 6 months is the minimum period that the offender must spend in custody in order to appropriately reflect the criminality involved in the offence: R v Simpson [2001] NSWCCA 534, (2001) 53 NSWLR 704 per Spigelman CJ at [63]. 40. Taking into account all factors that are relevant to sentence, the appropriate undiscounted starting point of the sentence I consider is 10 years. The sentence is reduced by 20 per cent to 8 years.
The applicant seeks leave to appeal against sentence on two grounds.

Ground 1: His Honour erred in his application of s 22 Crimes (Sentencing Procedure) Act 1999 by:

(a) failing to apply R v Oinonen [1999] NSWCCA 310 at [15] as interpreted and applied since R v Thomson (2000) 49 NSWLR 383;

(b) failing to give reasons for not affording the applicant a "discount" commensurate with the timing of his offer to plead guilty

Applicant's submissions

Ground 1 involves a challenge to the exercise of his Honour's discretion to allow a discount of 20% for the indication of the plea of guilty. The applicant contended that the indication of his plea was given at the earliest time, and accordingly his Honour should have given a discount of 25%.
The applicant pointed to the "practice" of the courts in relation to offers to plead guilty. Reference was made to R v Oinonen [1999] NSWCCA 310, where the offender had offered to plead guilty to manslaughter but the Crown would not accept that plea and a jury found him not guilty of murder but guilty of manslaughter. At [15], Grove J (Spigelman CJ and Sully J agreeing) said: There has been a long practice, however, in this court and in trial courts to take into account the offer of a plea of guilty which matches the crime for which a person is ultimately convicted.
Grove J explained (at [16]) that the offer of the guilty plea was relevant in two ways: one as an indication of remorse and contrition for the offence committed; and second, because of its utilitarian value. His Honour concluded that the offender should not be deprived of any benefit that he might expect for the utilitarian value of the offer of his plea.
The applicant accepted that the reasoning in R v Oinonen required qualification following the subsequent guideline judgment of this Court in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 (R v Thomson). In R v Thomson, Spigelman CJ, with whom the other members of the Court agreed, expressed the view (at [123]) that the focus should be on the utilitarian advantage derived by the criminal justice system from encouraging pleas of guilty. The Chief Justice had earlier observed that questions of remorse or contrition should be dealt with together with other subjective considerations: at [116]-[118].
The applicant submitted that R v Oinonen, as applied since R v Thomson, is authority for the allowance of an equivalent discount to that commensurate with what would have been awarded had the guilty plea been accepted at the time of its offer. Reference was made to R v Pennisi [2001] NSWCCA 326 at [27]; R v Cardoso [2003] NSWCCA 15; 137 A Crim R 535 at [21]; R v Forbes [2005] NSWCCA 377; 160 A Crim R 1 at [121]; Williams v R; Saunders v R [2006] NSWCCA 33 at [24]-[28].

Crown's submissions

The Crown accepted that the practice of the courts is to take account of an offer of the plea of guilty which matches the crime for which a person is ultimately convicted. Reference was made to R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [32], where this approach was endorsed.
The Crown also referred to R v Stambolis [2006] NSWCCA 56; 160 A Crim R 510 at [12] where Howie J, referring to R v Harmouche [2005] NSWCCA 398; 158 A Crim R 357 at [38]-[41] (Hulme J), explained that it is a mistake to focus solely upon the timing of the plea, because such an approach is to misread R v Thomson and ignores the rationale for a discount of 25%. Hulme J in R v Harmouche identified the rationale for a 25% discount as encompassing both "the extent of the utilitarian benefit and the complexity of evidence gathering and of any trial which was avoided".
The Crown pointed to the time between the date of Dr Westmore's report of 12 June 2012, and the indication of the applicant's plea of guilty to manslaughter on 12 December 2012. The Crown submitted that this period of time supported a conclusion that the applicant's plea was not indicated at the earliest possible time and that such conclusion was implicit in his Honour's assessment of the discount in the present case as 20%.

Consideration

No issue of principle is raised by ground 1. The parties were in agreement that although the applicant did not formally enter a plea of guilty to manslaughter in the Local Court, his Honour was required to take into account the offer of that plea of guilty which matched the crime for which the applicant was ultimately convicted.
Nor was there any issue as to the guideline judgment in R v Thomson that the utilitarian value of a plea should generally be assessed in the range of 10% to 25% discount on sentence: at [160].
It is well established that the primary consideration is the timing of the plea. Spigelman CJ noted in R v Thomson that a plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial: at [154]. The complexity of the issues about which the evidence will have to be gathered and adduced will also affect the value of the plea. Spigelman CJ noted that the greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of the plea: at [154].
The Chief Justice observed at [155]: The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial.
At [160], Spigelman CJ emphasised that what is to be regarded as an early plea will vary accordingly to the circumstances of the case and is a matter for determination by the sentencing judge.
In R v Borkowski at [32], Howie J (McClellan CJ at CL and Simpson J agreeing) restated the principles of general application for a guilty plea discount. Four matters are worthy of emphasis in the present case: 1. The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount: Thomson at [154]; R v Forbes (2005) 160 A Crim R 1 at [116]. 2. Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy: Thomson at [154]. … 9 The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: R v Dib [2003] NSWCCA 117; Ahmad v The Queen [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan v The Queen (2008) 51 MVR 572; or the offender has delayed the plea to obtain some forensic advantage: R v Stambolis; Saad v The Queen [2007] NSWCCA 98, such as having matters put on a Form 1: R v Chiekh [2004] NSWCCA 448. 10. An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value: R v Oinonen [1999] NSWCCA 310; R v Johnson [2003] NSWCCA 129.
To successfully challenge his Honour's assessment of the discount on sentence in the present case, it is necessary for the applicant to demonstrate error of the kind referred to in House v The King [1936] HCA 40; 55 CLR 499 at 505.
In this regard although his Honour outlined the chronology of events relating to the timing of the plea indicated in the Local Court and confirmed at the committal hearing, his Honour did not make any finding that the applicant had not indicated his plea at the first reasonable opportunity.
Nor did his Honour refer to any circumstances which may have eroded the utilitarian value of the applicant's guilty plea indicated in the Local Court: see R v AB [2011] NSWCCA 229; 59 MVR 356 at [2] (Bathurst CJ). His Honour's reasons do not, with respect, reveal the basis upon which he arrived at the 20% discount on sentence.
Of course, it is not correct to say that the applicant had an entitlement to a discount of 25%. A submission to that effect was made, and rejected, by this Court in Trujillo-Mesa v R [2010] NSWCCA 201. Fullerton J (with whom Hodgson JA and Price J agreed) said at [17]: This Court has restated in a number of decisions, and without qualification, that there is no entitlement to and no presumption favouring a particular percentile discount for a plea of guilty. Nonetheless, in the circumstances of the present case, his Honour should be taken to have mistaken the facts as to the timing of the applicant's plea, in arriving at the assessment of a discount of 20%.
It seems that his Honour accepted what was implicit in the Crown's written submissions, namely that the applicant had not indicated his plea at the first reasonable opportunity. The difficulty with this assessment, as already indicated, is that the Crown's written submissions did not articulate why the timing of the applicant's plea should be so characterised.
In this Court, the Crown submitted that the applicant had not indicated his plea at the earliest opportunity, as he had not disclosed Dr Westmore's report and indicated his intention to plead guilty to manslaughter until 12 December 2012, being 6 months after the report was written. The Crown accepted that there was no evidence of delay in the committal proceedings due to the late provision of Dr Westmore's report (tcpt at 16, lines 13-16), but nonetheless, submitted that it could be inferred that there was "delay" by the applicant in indicating his plea (tcpt 16 at lines 9-11).
When pressed in oral argument as to how the timing of the provision of Dr Westmore's report could have affected the committal hearing, the Crown initially submitted that if the applicant had provided Dr Westmore's report earlier than when he did, the Crown may have obtained its own report prior to committal, and that this may have influenced the Crown's position (tcpt at 16, lines 13-26. It was further submitted that there was a prospect that the Crown would have accepted the applicant's offer to plead guilty to manslaughter in satisfaction of the murder charge and there would have been a committal for sentence (tcpt at 16, lines 33-45). Acceptance of this submission would involve the Court in inappropriate speculation. It also would ignore what in fact transpired when the Crown obtained Dr Allnut's report dated 5 April 2013. (It was common ground that the report from Dr Allnut was dated 5 April 2013, although it seems from the transcript of the proceedings on sentence, that Dr Allnut's report was not in fact tendered on the sentencing hearing.
The Crown subsequently acknowledged that the timing of the provision of Dr Westmore's report did not matter because once the Crown obtained its report from Dr Allnut, the Crown rejected the applicant's offer to plead guilty to manslaughter (tcpt at 17, lines 8-13). So much should be accepted.
It should be accepted that, in relative terms, the applicant indicated his plea of guilty to manslaughter at the earliest reasonable opportunity during the committal proceedings. The applicant maintained his plea of guilty to manslaughter at all times thereafter.
It should also be accepted that the applicant's offer to plead guilty to manslaughter carried the utilitarian benefit that the Crown did not have to concern itself with the cause of death, the identity of the killer, or the applicant's intention to kill the deceased.
Whilst the utilitarian value flowing from the guilty plea to manslaughter is not a fixed element: R v AB at [33] (Johnson J; Bathurst CJ and Hoeben J agreeing), the Crown did not point to any other circumstances in the present case which may have eroded the utilitarian value of the guilty plea. In the circumstances, I would conclude that his Honour's discretion miscarried because he must be taken to have mistaken the facts as to the timing of the plea, in assessing the discount on sentence as 20%: House v The King at 505.
Ground 1 of the appeal is made out.

Ground 2: His Honour erred in his application of s 44 Crimes (Sentencing Procedure) Act 1999 by determining the non-parole period first, in circumstances where there was a finding of "special circumstances", resulting in an extension of the full term rather than a reduction in the non-parole period: cf R v Tobar (2004) 150 A Crim R 104 at 110 [36]-[39].

Applicant's submissions

The applicant contended that having found special circumstances, his Honour was required to give effect to that finding by "a reduction in the minimum term and not by an extension of the additional term": R v Tobar [2004] NSWCCA 391; 150 A Crim R 104 at [36] (Simpson J; Dunford and Hidden JJ agreeing), applying R v Moffitt (1990) 20 NSWLR 114. The applicant also referred to R v Huynh [2005] NSWCCA 220 at [35]-[39]; Musgrove v R [2007] NSWCCA 21; 167 A Crim R 424; Markham v R [2007] NSWCCA 295 at [29]; R v P [2004] NSWCCA 218.
The applicant contended that his Honour had failed to follow this approach, and erroneously engaged in a "bottom-up" process of sentencing (tcpt at 8, lines 25-28). It was submitted that his Honour had first determined what he held to be an appropriate non-parole period, then determined a head sentence and only then reduced the sentence for the guilty plea. The applicant's complaint was that the head sentence had been extended on account of the fixing of the non-parole period first.

Crown's submissions

The Crown submitted that no such error had been made by his Honour. The Crown pointed to his Honour having referred to the finding of special circumstances to vary the statutory ratio, prior to referring to either the non-parole period or the term. This, the Crown submitted, was to be contrasted with the error found in Musgrove v R at [44] (Simpson J; McClellan CJ at CL and Price J agreeing) that: A finding of special circumstances, after the determination of the non-parole period, would provoke an extension, beyond proper limits, of the balance of term. [Emphasis added.]

Consideration

Section 44(1) of the Sentencing Act provides: Unless imposing an aggregate sentence of imprisonment, when sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).
The distinction between the requirement to firstly "set" as opposed to "determine" the non-parole period was considered in Musgrove v R where Simpson J said at [44]: That the non-parole period is now, by s 44(1), required first to be set does not necessarily mean that it must first be determined: see Moffıtt at 122; 27-28, R v P [2004] NSWCCA 218; R v Tobar. Indeed, in the light of the discretion conferred by subs (2), it is difficult to see how the sentencing duty could properly be discharged by the determination first of the non-parole period. To determine, initially, the non-parole period, before determining the total sentence, would, in my opinion, (where special circumstances are then found) be conducive to error of the kind exposed in Huynh. A finding of special circumstances, after the determination of the non-parole period, would provoke an extension, beyond proper limits, of the balance of term. Sentencing judges need to be wary of taking a course that might lead to that error. Yet, on too literal an application of the section, that kind of error is rendered likely. The section appears to enjoin a sentencing judge firstly to fix the non-parole period, as the minimum term to be served in custody; and then to consider the question of special circumstances. It is obvious that, if special circumstances are found, the temptation will be to extend the balance of term rather than, as was held in Moffıtt and cases thereafter to be the correct course, to reduce the non-parole period. [Emphasis in the original.]
Here the applicant challenges [39] and [40] of his Honour's reasoning (set out at [28] above). Counsel for the applicant fairly accepted in oral argument that if the two paragraphs in his Honour's reasons had been reversed, the present complaint would not have been open to the applicant (tcpt at 9, lines 7-15).
In my view, his Honour did not err in the manner suggested by the applicant. On a fair reading of his Honour's reasons, his Honour made a finding of special circumstances before determining the non-parole period. Having found special circumstances, based on the applicant's need for ongoing psychiatric treatment, his Honour is to be taken to have determined the total sentence of 8 years, after allowance for the 20% discount for the plea, and determined the non-parole period of 5 years 6 months, taking into account the finding of special circumstances so as to reduce the proportion that the non-parole period bears to the head sentence to about 68%.
I reject the applicant's submission that it should be inferred from the order in which his Honour expressed his reasons in the two paragraphs identified, that he extended the balance of the term (to 8 years) to reflect his finding of special circumstances, rather than to reduce the non-parole period.
Ground 2 of the appeal is not made out.
There should however be a grant of leave to appeal, as ground 1 has been made out.

Is some other sentence warranted in law?

Once error is established it becomes this Court's duty to resentence unless in the exercise of its discretion it concludes that no sentence, whether more or less severe, is warranted and should have been passed: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [42].
The Crown contended that if the Court concludes there was error in the exercise of the sentencing discretion, then no lesser sentence is warranted in law taking into account the full range of factors affecting sentence: s 6(3) of the Criminal Appeal Act 1912 (NSW).
Counsel for the applicant relied in this Court upon an affidavit from the applicant as to his remorse and circumstances post-sentence. Evidence of post-sentence conduct is admissible for the purpose of determining whether a sentence should be substituted under s 6(3) of the Criminal Appeal Act: Douar v R [2005] NSWCCA 455; 159 A Crim R 154 at [124] (Johnson J; McClellan CJ at CL and Adam J agreeing).
Counsel for the applicant submitted that the affidavit evidence demonstrated that the applicant has been compliant with his prescribed medication regime, has completed various courses and is undertaking a job-seeking course. The affidavit also expressed the applicant's sorrow and regret for his actions in killing the deceased which he acknowledged were inhumane, and which he ascribed to his mental condition at the time. The Crown did not challenge this evidence.
Counsel for the applicant urged the Court to make the same findings as his Honour made on sentence, except in relation to remorse (tcpt at 14, lines 3-7). The applicant's recent expression of regret and sorrow may be taken as an indication of an acceptance of responsibility for his conduct. The Crown did not submit to the contrary.
I have had regard to the applicant's subjective circumstances which have been mentioned above.
It is necessary to balance all these matters against the offending.
The maximum sentence is an important legislative guidepost for the Court to take into account: see Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. The legislature has set the maximum penalty of 25 years imprisonment for manslaughter: Crimes Act, s 24.
As has frequently been stated, manslaughter is almost unique in its protean character as an offence. In its objective gravity it may vary greatly: R v Forbes at [133] (Spigelman CJ; McClellan CJ at CL and Hall J agreeing).
The authorities recognise that although manslaughter can be characterised in different ways, particularly in the various contexts which may reduce what would otherwise be a murder to manslaughter, the degree of variation within any such category is generally also over a wide range. Matters of fact and degree arise in all categories of manslaughter: R v Forbes at [134].
In R v Forbes Spigelman CJ referred to the earlier observations of Gleeson CJ in R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep). Those observations are pertinent here. Gleeson CJ said (Grove and Ireland JJ agreeing): It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability. At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. (R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.) When the basis of a finding of manslaughter is diminished responsibility, pursuant to s23A of the Crimes Act, what is nevertheless ordinarily involved, and what is involved in the present case, is a conclusion that the taking of human life was the consequence of a deliberate and willed act, performed with intent to kill or cause grievous bodily harm, or with reckless indifference to human life. The abnormality of mind substantially impairs the offender's mental responsibility for his or her act but it does not negate such responsibility. The reduction in the capacity for self control which results from the abnormality of mind diminishes the responsibility, but it does not excuse the act. (R v Low (1991) 57 A Crim R 8.) Making a judgment as to the extent to which, in a given case, responsibility is diminished, can be a difficult task. The hypothesis, however, is that the offender is responsible for a deliberate act which took the life of another person, and which, but for the abnormality of mind, would bear the character of murder. An examination of sentences imposed in other cases of diminished responsibility shows that quite severe sentences have been passed upon persons found to have diminished responsibility ... … Reference to these cases is not made for the purpose of suggesting that they determine the appropriate penalty in the present case. The point is that the sentences there imposed proceeded upon a clear recognition that, notwithstanding the diminished responsibility, it was necessary to impose a sentence which reflected the objective seriousness of the case and, in particular, the circumstance that what was involved was the felonious taking of human life with intent to kill or cause grievous bodily harm.
Notwithstanding the frequent remarks in this Court about the lack of utility of comparing sentences in manslaughter of different cases, counsel for the applicant referred to Pitt v R [2014] NSWCCA 70 and three other decisions referred to in that case, as comparative cases on sentence. None of these cases assist the applicant. Dealing briefly with each of them.
Pitt v R involved schizophrenia on the part of the offender and there was a history of extreme provocation. The offender had pleaded guilty to manslaughter on the basis of substantial impairment. Pitt does not assist the applicant. The circumstances of the killing were different and occurred after a long and chaotic night during which the offender and the deceased had repeatedly argued. In addition, the offender's psychiatric state interrelated with his perception of the threat posed to him by the victim and the victim's brother.
R v Kain [2013] NSWSC 638 involved a psychiatric impairment, and the killing occurred after the offender lost his temper. A jury had acquitted the offender of murder and convicted him of manslaughter to which he had pleaded guilty. Kain does not assist. The offender was sentenced on the basis that he was guilty of manslaughter by an unlawful and dangerous act, not that he intended to kill his mother or cause her grievous bodily harm.
R v Hollaway [2013] NSWSC 218 involved schizophrenia, and multiple stabbings. The offender pleaded guilty to manslaughter on the basis of substantial impairment. The offender's abnormality of mind arose from an underlying condition of a drug induced psychosis on the background of an unstable personality. The offender was acting on the belief at the time of the stabbing that it was necessary to do what she did in order to defend herself.
The applicant did not ultimately rely on R v Chen [2012] NSWSC 1000 in oral argument (tcpt at 12, lines 47-48).
In the present case, the objective gravity of the offence was substantial, as his Honour found. The applicant's attack upon the deceased was deliberate, brutal and sustained. It was only the abnormality of mind which diminished the applicant's responsibility for his act. However, as his Honour observed, it did not negate his moral culpability entirely: R v Dawes [2004] NSWCCA 363 at [34] (Dunford J; Hoeben J agreeing).
Each of the mitigating factors found by his Honour may be accepted (there being no challenge by the Crown) and each is to be taken into account. Nor did the Crown challenge his Honour's findings as to the respective weight to be given to deterrence, general and specific, taking into account the applicant's mental condition. These findings may also be accepted.
His Honour's finding that the applicant would require ongoing psychiatric treatment is not challenged by the Crown. A finding of special circumstances should be made (justifying departure from the statutory ratio between the non-parole period and the balance of the term) to provide for the applicant's need for a longer period of such treatment upon his release. I would maintain his Honour's departure from the statutory ratio to approximately 68%.
In all the circumstances, I consider that a lesser sentence is warranted in law. The sentence that I would consider appropriate after allowing for the 25% discount for the applicant's plea of guilty is a term of imprisonment for 7 years 6 months. I would set a non-parole period of 5 years 1 month, commencing on 28 February 2012 and expiring on 27 March 2017, with a balance of term of 2 years 5 months commencing on 28 March 2017 and expiring on 27 August 2019.
The Court is required to specify the earliest date on which the applicant is eligible for release on parole: Sentencing Act, s 48. Here that date is 27 March 2017. The form of order proposed - that "the offender will become eligible for release on parole at the end of the non-parole period" which expires on 27 March 2017, broadly reflects the approach suggested in R v BA [2014] NSWCCA 148 at [19] (McCallum J; Gleeson JA and Fullerton J agreeing) and adopted in subsequent cases such as R v Dennis; R v Elwood [2014] NSWSC 1615 at [59] and [62] (R A Hulme J).
I propose the following orders: 1. Grant leave to appeal against sentence. 2. Appeal allowed. 3. The sentence imposed in the Supreme Court on 18 September 2014 is quashed. 4. The applicant is sentenced to a term of imprisonment of 7 years 6 months with a non-parole period of 5 years 1 month commencing on 28 February 2012 and expiring on 27 March 2017, with a balance of term of 2 years 5 months commencing on 28 March 2017 and expiring on 27 August 2019. The applicant will become eligible for release on parole at the end of the non-parole period.
ADAMS J: I agree with Gleeson JA.
FAGAN J: I agree with Gleeson JA. If the plea of not guilty to murder but guilty of manslaughter had been accepted by the Crown when it was first offered there would have been no reason for the sentencing judge to have applied anything less than 25%, the discount which has been accepted since R v Thompson and Houlten [2000] NSWCCA 56; 49 NSWLR 383 as the full measure of allowance for the purely utilitarian value of a plea of guilty. I do not see anything in the evidence or submissions of the Crown at sentence, nor anything in what was put to this Court on the appeal, which would have justified a reduction in the quantum of discount if, hypothetically, the manslaughter plea had been accepted.
It was within the Director of Public Prosecutions' responsibility to reject the offered plea and thereby to cause the issue of abnormality of mind, which was raised by the applicant's plea of not guilty to murder, to be submitted to a jury. But the applicant had done everything in his power to relieve the Crown of the risk and expense of a trial. The requirement for a trial flowed solely from the Crown's unwillingness to accept the applicant's case regarding his mental condition and its insistence that a jury should determine the matter.
In R v Pennisi [2001] NSWCCA 326 the circumstances were relevantly comparable to the present and Bell J allowed 25% for the "notional utility" of the offered plea. As Gleeson JA has shown, the Crown has not identified to this Court any reasonable ground for having submitted to his Honour that the discount should have been "in the lower part of the range of 10% to 25%". This aspect of sentencing has assumed such an importance in the decisions of accused persons regarding their pleas that the Crown really needs to have a principled basis for asking a sentencing judge to strike the discount at the low end of the range. In the particular circumstances of this case no principled basis has been shown for the Crown to have urged that the discount be anything less than the upper limit.

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Crimes Act 1900(NSW)ss 23A, 24

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