Supreme Court New South Wales Medium Neutral Citation: R v Sharpe (No 7) [2021] NSWSC 379 Hearing dates: 21 April 2021 Date of orders: 23 April 2021 Decision date: 23 April 2021 Jurisdiction: Common Law Before: Bellew J Decision: (1) The offender is convicted of the manslaughter of Andrew Peter Drake. (2) The offender is sentenced to imprisonment for a period of 7 years and 6 months to date from 10 January 2020 and to expire on 9 July 2027. (3) I specify a non-parole period of 4 years and 9 months imprisonment to date from 10 January 2020 and to expire on 9 October 2024. (4) The offender will be eligible for release on parole on 10 October 2024 and his sentence will expire on 9 July 2027. Catchwords: CRIMINAL LAW – Offences – Sentence following a trial where offender found not guilty of murder but guilty of manslaughter on the basis of excessive self-defence – Where the offender intervened in an altercation between his father and the deceased – Where deceased used a knife to seriously injure the offender's father – Where the offender then repeatedly stabbed the deceased – Offending aggravated by the use of a weapon and the fact that the offender was on conditional liberty at the time – Spontaneous offending initially followed by a response which was entirely excessive – Offender 18 years of age at the time – Guarded prospects of rehabilitation CRIMINAL LAW – Sentence – Finding facts following the verdict of a jury – Where Crown case of murder clearly rejected by jury – Where Crown submitted that it was open to reagitate factual issues on sentence based upon propositions denied by the offender and apparently rejected by the jury – Necessity to find facts consistent with the verdict of the jury – Necessity to interpret the jury's verdict in accordance with the manner in which the cases were presented at trial – Facts found accordingly Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 Clarke-Jeffries v R [2019] NSWCCA 56 Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 Dellow v R [2020] NSWCCA 301 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 HJ v R [2014] NSWCCA 21 JM v R [2012] NSWCCA 83; (2012) 223 A Crim R 55 KT v R [2008] NSWCCA 51; (2008) 182 A Crim 571 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587 R v Mastronardi [2000] NSWCCA 12; (2000) 111 A Crim R 306 R v Medich (No.43) [2018] NSWSC 886 R v Shalala (CCA (NSW) 1 June 1989 (unreported) Smith v R [2015] NSWCCA 193 Category: Sentence Parties: Daniel James Sharpe – Offender Regina – Crown Representation: Counsel: K Ratcliffe – Crown T D Anderson – Offender Solicitors: Director of Public Prosecutions (NSW) – Crown Jennifer Chalker Lawyer – Offender File Number(s): 2019/215856 Publication restriction: Nil Judgment INTRODUCTION 1. On 1 February 2021, Daniel James Sharpe (the offender) pleaded not guilty to an indictment alleging that on or about 13 April 2019, at Surfside in the State of New South Wales, he murdered Andrew Peter Drake. On 23 February 2021 the jury found the offender not guilty of Mr Drake's murder, but guilty of his manslaughter. The maximum penalty for the offence of manslaughter is imprisonment for 25 years. No standard non-parole period is prescribed. THE EVIDENCE ON SENTENCE The Crown case 1. The Crown tendered the following material on sentence: [1] 1. the offender's criminal history; 2. court attendance notices and statements of facts relating to some of the previous offences committed by the offender; 3. the offender's custodial history; 4. a statement of Detective Andrew Gibson dated 31 July 2019, with accompanying photographs depicting a quantity of knives and related items found in the offender's bedroom at the time of his arrest; 5. a confidential background report prepared by Juvenile Justice in relation to the offender's appearance before the Local Court on driving charges in 2018; 6. victim impact statements of Mr Drake's sisters, Lucy Wessell and Penny Drake; and 7. a plastic replica of the knife used to stab Mr Drake. The offender's case 1. The following documentation was tendered in the offender's case on sentence: [2] 1. a report of Amanda White, Forensic Psychologist and Clinical Neuropsychologist, dated 14 April 2021; 2. a testimonial from George Singleton, the offender's grandfather; 3. a testimonial from Michelle Singleton, the offender's aunt; and 4. a testimonial from Julie Sharpe, the offender's mother. 1. A further document was tendered which was in the nature of agreed facts arising out of Ms White's report, and which was prepared by the parties in order to alleviate the need for Ms White to attend for cross-examination. Those agreed facts are as follows: 1. the Minnesota Multiphasic Multi Personality Inventory (MMPI-2-RF) Test would have been helpful, although not essential, to Ms White's assessment of the offender; 2. Ms White was not asked to conduct a risk assessment of the offender, and was not provided with any facts in relation to the offender's prior convictions, such facts being a necessary component of any such assessment; 3. Ms White identified the offender as having a number of long-standing and entrenched psychological issues which require a period of moderate to intensive psychological treatment; 4. in the opinion of Ms White, the offender does not yet have a conscious awareness of many of those issues; and 5. the success of any treatment requires the willingness and commitment of the offender. VICTIM IMPACT STATEMENTS 1. The two victim impact statements tendered by the Crown were read to the Court. They set out, in some detail, the loss felt by the members of Mr Drake's family following his death. They express deep affection for Mr Drake, who is clearly missed by his family. 2. The expression of sentiments of that kind in victim impact statements is, of course, commonplace. Providing victims of offending with an opportunity to express such sentiments in a statement forms part of the rationale underlying the legislation which allows such statements to be provided. But perhaps the most remarkable aspect of each of the statements in this case stems from the sentiments expressed by each of Mr Drake's sisters for the offender. Far from expressing hatred or rancour towards the offender, both of the statements expressed considerable empathy for him, accompanied by expressions of hope that he will learn from what has occurred, and will prove, in time, to be a productive and responsible member of the community. Those sentiments are, if I might respectfully say so, an unequivocal indication of the integrity of Ms Wessel and Ms Drake. 3. In her statement, Ms Wessell fairly acknowledged that losing a family member is, unfortunately, not a unique experience, and is indeed one which is experienced virtually by every member of the community at some point during his or her lifetime. That much is certainly true. But in a case such as this, that proposition has the capacity to understate the significance of the circumstances in which both Ms Wessell and Ms Drake made their statements. One does not need to pause and reflect for any length of time to realise that the devastating effects which invariably flow from the loss of any family member are exacerbated, and exacerbated significantly, when that loss occurs in circumstances such as the present. Try as we might, those of us who have never been in the position of Mr Drake's family could never truly appreciate their sense of loss. 4. I wish to take this opportunity of extending my sympathy, and that of the Court, to Ms Wessell, Ms Drake, and all of the members of Mr Drake's immediate and extended family. I thank Ms Wessell and Ms Drake for providing their statements. I am hopeful that the fact that they have taken the opportunity to do so may assist each of them in their grieving, if only to a small degree. 5. It was the Crown's submission that each of the victim impact statements should be considered and taken into account in the manner for which provision is made in s 30E(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). Counsel for the offender raised no issue as to that course. 6. Section 30E(3) is in the following terms: (3) a victim impact statement of a family victim may also be taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of a primary victim's death on family victims is an aspect of harm done to the community, but only if – – (a) the prosecutor applies for this to occur, and (b) the court considers it to be appropriate. 1. The unlawful death of any person constitutes a harm inflicted on the community as a whole. [3] In those circumstances, I propose to proceed in accordance with s 30E(3). THE FACTS OF THE OFFENDING 1. I am required to sentence the offender in a manner consistent with the verdict of the jury. [4] Given the basis on which the trial was conducted, it is evident that the jury concluded that in stabbing Mr Drake, the offender acted in defence of himself and/or his father, but did so with excessive force. [5] The jury's verdict incorporates an acceptance of the fact that the offender believed, on the basis of particular circumstances, that it was necessary to act as he did in order to defend himself and/or his father. As Simpson JA pointed out Smith v R two questions are embedded within that proposition, namely: [6] 1. what were the circumstances as the offender perceived them to be?; and 2. what was the conduct that the offender believed was necessary in order to defend himself? 1. A third question also arises, namely: 1. to what degree did the offender's conduct depart from what would have been a reasonable response to those perceived circumstances? 1. A significant issue emerged in the course of the sentence hearing as to the first of those questions, and the nature of the fact finding exercise which must be undertaken to answer it. In order to resolve that issue, it is necessary to make some reference to the manner in which the respective cases were conducted at the offender's trial. 2. There was no dispute at the trial that: 1. Mr Drake died on or about 13 April 2019; 2. the offender's act of stabbing Mr Drake caused his death; and 3. in stabbing Mr Drake the offender intended, at least, to inflict grievous bodily harm. 1. In opening the case to the jury, the Crown articulated the issue between the parties in the following terms: [7] The main and possibly only real issue in this trial is whether the accused in stabbing the deceased 11 times was acting in defence of his father. … The Crown case is that there was no reasonable possibility that the accused believed it was necessary to stab the deceased at all, let alone stab him multiple times. The deceased and the accused's father were engaged in a physical scuffle, nothing more. ….. The Crown case is that the deceased was never in possession of a knife and that the accused, for whatever reason, decided to stab the deceased with, at the very least, the intention of causing really serious injury. 1. Counsel for the offender opened his case to the jury in (inter alia) the following terms: [8] It is [the offender's] case that Andrew Drake did have a knife and that Andrew Drake slashed the hand of [the offender's father]. It is [the offender's] case that there was a wrestle and the tragic events involving Mr Sharpe stabbing and killing Andrew Drake followed thereafter. [The offender's] case is that this stabbing of the deceased was a reasonable response to the circumstances as he perceived them at the time. 1. It is clear from those extracts that there was a joinder of issue between the parties as to whether the knife which the parties accepted was used by the offender to stab Mr Drake was ever in Mr Drake's possession. 2. The offender gave sworn evidence before the jury consistent with the terms in which his case was opened. In cross-examination, the Crown put to him (inter alia) that Mr Drake did not have a knife at any stage of the incident, and that he (the offender) did not believe that it was necessary to stab Mr Drake. The offender rejected both of those propositions. 3. In the closing address, the Crown submitted to the jury that all of the elements of murder were satisfied. The Crown made no submission at all as to the alternative count of manslaughter. Counsel for the offender put the following submission to the jury in his closing address: [9] The accused's case is that his father was injured first by Mr Drake, losing the left, part of his left hand, and that as a consequence of that, as a direct consequence of that, Daniel Sharpe intervened. 1. Against this background, the Crown submitted that in determining the facts of the offending for the purposes of sentence, and having regard to the verdict of the jury, I should find that the circumstances which led the offender to believe that it was necessary to stab Mr Drake were limited to the offender witnessing the initial physical altercation between his father and Mr Drake, and specifically did not extend to include Mr Drake being in possession of the knife at any point. The effect of that submission was that in determining the facts of the offending for the purposes of sentence, I should revisit a number of the issues which were canvassed with the offender in cross-examination, that I should reject his account of what occurred, and that I should conclude, in accordance with the Crown's submissions to the jury, that (inter alia) it was the offender who was in sole possession of the knife at all material times. 2. Counsel for the offender submitted that adopting such a course would be both contrary to principle, and inconsistent with the verdict of the jury. He submitted that the Crown's position was founded upon a restatement of the submissions which were put to the jury as to what was said to be the implausibility of the offender's version of events. It was submitted that it was clear from the jury's verdict that those submissions had been rejected, and the offender's account had been accepted. Counsel submitted that had the reverse been the case, the offender would have been found guilty of murder. 3. Counsel emphasised that the offender's entire case of self-defence rested on the following fundamental propositions: 1. Mr Drake and the offender's father became involved in a physical altercation; 2. Mr Drake produced a knife which he used to seriously injure the offender's father; 3. the offender, as a consequence, feared for his safety and that of his father; and 4. because of these matters, he believed that it was necessary to intervene and stab Mr Drake, and did so. 1. Counsel further submitted that having regard to the conduct of the trial, the verdict of the jury could only be understood on the basis that the jury accepted the offender's account. Counsel submitted that in those circumstances, it was not open to the Crown to reagitate, on sentence, aspects of that account which were the subject of submissions which the jury evidently rejected. 2. At the risk of stating the obvious, the role of a jury in a criminal trial is to decide whether the accused is guilty or not guilty of the charge(s) in the Indictment. That task involves (inter alia) determining the issue(s) which are joined between the Crown and the accused. Such issues are defined by the terms of the indictment, and by the plea. [10] 3. It is uncontroversial that following a verdict of guilty by a jury a sentencing judge must (inter alia) find facts as to the circumstances of the offending. Any facts found must be consistent with the jury's verdict. [11] Importantly however, the jury's verdict must be interpreted, and the facts must be found, in accordance with the way in which the cases were presented at the trial, [12] and in accordance with the issues which were left for the jury's determination. 4. In the present case, there were two such issues, namely: 1. whether the offender believed, at the time of stabbing Mr Drake, that it was necessary to do what he did; and 2. whether the offender's stabbing of Mr Drake was a reasonable response in the circumstances as he perceived them. 1. The offender's case in respect of the first of those matters, which the jury evidently accepted, was that it was necessary to stab Mr Drake because in the course of an altercation with his father, Mr Drake had produced a knife which he had used to sever a large portion of flesh from one of his father's fingers, as a consequence of which the offender was in fear. The offender rejected the Crown's assertion that he produced the knife. The general thrust of the Crown's cross-examination of the offender, and of the Crown's closing address, was that the offender's account was implausible and should be rejected in its entirety. 2. Given the issues in the present case as I have identified them, it is evident that the jury rejected the Crown case, and accepted that the offender believed that it was necessary to stab Mr Drake in order to defend himself and/or his father. The only direct evidence of the circumstances which formed the basis of that belief came from the offender. The Crown challenged those circumstances in their entirety, and invited the jury to find the offender guilty of murder. No submission was made as to the alternative count of manslaughter. The jury clearly did not accept the Crown's position. Had the jury done so, the offender would have been found guilty of murder. Given the jury's clear rejection of the Crown's submissions, and in the absence of any alternative ever being put, the jury must have accepted the offender's account. 3. The submission now put by the Crown amounts to the proposition that it is open to me, for the purposes of finding the facts of the offending, to reagitate those factors relied upon by the Crown before the jury which were clearly rejected, and find that the circumstances forming the basis of the offender's belief that it was necessary to stab Mr Drake were other than those relied upon by the offender throughout his trial. Bearing in mind the necessity to interpret the jury's verdict according to how the trial was conducted, I do not consider that the approach advocated by the Crown is open. The Crown completely disavowed the proposition that the offender had any basis at all to believe that it was necessary to stab Mr Drake. Specifically, in the opening address, the Crown made clear its position that even the initial altercation between the offender's father and Mr Drake did not provide any proper basis for the offender to hold that belief. To now put that I should find that this was the basis for the offender's belief, and that the offender was in possession of the knife at all times, is, in my view, to ignore both the manner in which the trial was conducted, and the jury's verdict. 4. I therefore find the facts of the offending to be as follows. 5. On the evening of Saturday 13 April 2019, the offender was at home in Surfside with his father, David Sharpe, drinking and listening to music. The offender's evidence before the jury, which was not challenged, was that he had consumed one pre-mixed can of bourbon and cola during the course of that afternoon/evening, and was feeling "quite sober". 6. The offender's premises were adjacent to those of Mr Drake's parents. Mr Drake and other members of his family had been at his parents' premises on the afternoon and evening of 13 April 2019. 7. When having dinner, Mr Drake and his sister Penny heard the music coming from the offender's premises. At about 11.00pm, Mr Drake approached the offender's father and asked whether he could come over. The offender's father agreed. Neither the offender nor his father had previously met Mr Drake. There was, initially at least, certainly no animosity between any of them. 8. Mr Drake and his sister then accessed the offender's premises by climbing over the back fence using a ladder. The offender and his father, along with Mr Drake and his sister, all sat in a shed listening to music and talking. Mr Drake and the offender's father were both drinking alcohol. Mr Drake's blood alcohol level at the time was 0.269g/100ml of blood. The blood alcohol level of the offender's father was 0.32g/100ml of blood. 9. Following the arrival of Mr Drake and his sister, a degree of tension developed between the offender and his father which caused the offender to go outside. Ms Drake followed the offender outside in order to placate him. She and the offender had been talking to one another for several minutes when their attention was drawn to the raised voices of Mr Drake and the offender's father coming from inside the shed. Mr Drake's sister and the offender ran inside to see that Mr Drake and the offender's father had hold of one another. Mr Drake's sister and the offender tried to break them up, without success. Although Mr Drake's sister had a "slight memory" of Mr Drake stumbling near the door, she said that there was a "gap" in her recollection. Her next memory was being on the phone to 000. The only direct evidence at the trial as to what immediately occurred thereafter came from the offender. 10. When asked what happened after he had attempted to separate Mr Drake and his father, the offender gave the following evidence which I accept: [13] I seen one of Andrew's hands leave my father's shirt, and I seen a knife beside his right thigh, and I seen him raise the knife up to my father – his – in a slashing motion, my father's face and I seen my father put his left hand up in front of his face….He slashed my father's left hand, and little finger, in there. I don't recall seeing any blood, but then I proceeded to push Andrew Drake away from my father. 1. The fact that the left hand of the offender's father was slashed at some point is supported by the fact that a large piece of his flesh was found outside the shed. 2. Mr Drake then became engaged in a struggle with the offender, in the course of which he struck the offender on the forehead, causing a laceration. The offender then described what followed: [14] Q. And what happened? A. I proceeded to grab his arm and push the knife into his abdomen, his lower stomach. Q. So, Mr Drake was holding the knife at that point? A. Correct. Q. And do you recall where Penny Drake was at this time? A. No. Q. Do you recall where your father was? A. No. Q. And did Mr Drake try and attack you with the knife? A. Correct. Q. Tell me what he did? A. Like I said, struck me in the forehead and then proceeded to try and attack me, and I pushed the knife into his stomach and then the I heard a popping noise and the knife proceeded to drop out of Mr Drake's hand. Q. And what did you do? A. I grabbed the knife and I come up and I stabbed him in the lower abdomen, stomach. … Q. And then after you'd stabbed him once, and you heard that popping noise, what happened next? A. We proceeded to fight. Q. When you say, "fight", what do you mean? A. Hitting one another. Q. What were you hitting him with? A. My hand and I was stabbing him as well. Q. How many times did you stab him at this point? A. Twice. Once himself, once again, and then another time. Q. When you say, "once himself", what do you mean by that? A. He had the knife in his hand, and I pushed the knife into his abdomen, into his stomach. Q. So, you were fighting with him and that occurred as part of the fight, is that what you're saying? A. Correct. Q. And at some point, did you leave the shed? A. Correct. Q. What happened? A. We continued this to have a scuffle outside of the shed, leading between the car and the shed. … Q. Now tell me more about this scuffle, what was happening? A. We were both were pushing and hitting each other, and I was stabbing Andrew Drake. Q. And what was he doing while you were stabbing him? A. Hitting me. Q. And what was he hitting you with? A. His fists. 1. The scuffle between the offender and Mr Drake then continued outside, in respect of which the offender said: [15] Q. And what happened at that point? A. We continued fighting for another 10/15 seconds, maybe a bit longer. It all happened very quick, but we were trading blows, hitting each other and I continued to stab Andrew Drake. Q. How many times, when you were outside of the shed, do you think you would have stabbed Andrew Drake? A. I can't recall exactly, but six, six or seven times. Q. So, you stabbed him more when he was outside than you did when he was inside the shed? A. Correct. 1. The offender accepted that he inflicted a further six or seven stab wounds to Mr Drake once they were outside but denied inflicting any wounds when Mr Drake was lying on the grass. He was asked: [16] Q. So what happened after you delivered that final stab wound to Mr Drake, what do you remember happening? A. He proceeded to stumble backwards and then stumbled to the side, to the grass area, and collapsed on the grass. Q. Are you able to give me an estimate of the time between going into the shed and seeing these two men fighting to that point in time when Mr Drake collapses on the grass? A. Under a minute, 40/50 seconds, 50 seconds. Q. When Mr Drake collapsed to the grass, did you continue to stab him at that point? A. No. Q. Did you at any point during the evening use a pair of knuckle dusters to hit him? A. No. Q. Did you see anyone using any knuckle dusters to hit Mr Drake? A. No, not that I recall. 1. The offender said that after Mr Drake had collapsed on the grass, he went inside the shed and grabbed rags and a T-shirt to wrap around his father's injury. He then called '000' and gave the phone to Mr Drake's sister before using other rags to try and stop Mr Drake's bleeding. 2. The '000' recording formed part of the evidence in the Crown case. [17] The offender can be heard saying in the background: What's going on bud, why'd you pull a knife man?… Why did you pull a knife on my dad man? Ya pulled a knife on my dad. 1. The offender was asked why he thought it was necessary to stab Mr Drake: [18] Q. Why did you think it was necessary to stab Andrew Drake? A. Well, I was terrified, I feared for my life, and my father's life at that point in time. I've never been so scared in my life; I was beside myself. Q. Once Andrew Drake dropped the knife why didn't you just kick the knife away? A. I don't recall exactly but as I said, I was terrified. I believed Andrew to be a threat to me, and to my father. I believe ongoing attacks. Q. When you picked the knife up and you did that first wound, which you say created a pop noise, why didn't you just stop then? A. I believed he was still a threat. Q. Why do you believe that? A. He was still attacking me. Q. But he didn't have the knife at that point? A. No. Q. So why did you believe he was still a threat when you had the knife? A. I can't recall exactly but I remember a struggle continuing and not very much realising I still had the knife or not. Q. Was Mr Drake bigger than you? A. Yes. 1. The offender suffered a number of injuries in the course of the struggle. These included scratch marks on his upper right arm and lower left arm, bruising to his back, abrasions to his left knee, and abrasions to his left foot and lower right leg. 2. When spoken to by police, the offender made reference to Mr Drake having "come at [his] dad with a … knife". [19] When speaking with police again a short time later, the offender referred to Mr Drake as "the guy that attacked my dad". [20] Along with what the offender was overheard saying on the recording of the 000 call, the offender's statements to police were essentially contemporaneous. They fortify my acceptance of his account. 3. Dr Jennifer Pokorny, a Forensic Pathologist, performed an autopsy on Mr Drake on 18 April 2019 and concluded that the direct cause of his death (which was not an issue at the trial) were stab wounds inflicted to his chest and abdomen. Dr Pokorny said that she observed three significant stab wounds which penetrated Mr Drake's chest and abdomen, along with multiple other stab wounds to various areas of his body. There were 11 stab wounds in total. Dr Pokorny was asked: [21] Q. The three most significant stab wounds, one entered the left chest with the wound track passing through the heart? A. Yes. Q. Into one of the coronary arteries and into the left lung? A. Yes. Q. Would that of itself have been a fatal injury? A. Yes, this wound went through the heart, so in the front and out the sort of back left side of the heart, and then into the lung, and in doing so it completely cut through one of the coronary arteries, so that in itself would be a potentially lethal injury. Q. Would it have been rapidly so? A. Yes. Q. There was also another of the three most significant stab wounds that entered the left side back? A. Yes. Q. In between two of the ribs, is that right? A. Yes, that's right. Q. And into the left chest cavity? A. Yes. Q. Then the third most significant stab wound in the right side of the abdomen? A. Yes. 1. Dr Pokorny also found evidence of linear abrasions on Mr Drake's lower limb. She was sent a photograph of a pair of knuckledusters which were found in the offender's bedroom at the time of his arrest and expressed the view that they "certainly could have caused" those abrasions. 2. DNA recovered from the knuckledusters was a mixture originating from at least 3 individuals. Neither the offender, his father nor Mr Drake could be excluded as contributors to that mixture. Lisa-Ann Wedervang, a Forensic Biologist called by the Crown, accepted the proposition that because DNA is capable of being transferred through an intermediary, the presence of a person's DNA on an object does not necessarily mean that that person has come into direct contact with that object. She also agreed that when individuals have been in direct or indirect contact with each other, there can be a transference of DNA between those individuals. 3. The offender denied using the knuckledusters in the course of the altercation with Mr Sharpe. The high point of Dr Pokorny's evidence was that the linear abrasions found on Mr Sharpe on post mortem examination could have been caused by such an object. The evidence of Ms Wedervang as to transference of DNA provides an alternative explanation of how Mr Drake may have contributed to the DNA found on the knuckledusters. Bearing in mind that the onus is on the Crown, I am not persuaded that the knuckledusters were used by the offender in the altercation with Mr Drake. THE OBJECTIVE SERIOUSNESS OF THE OFFENDING Submissions of the Crown 1. It was the Crown's submission that the basis of the offender's belief that it was necessary for him to act as he did should be limited to the fact of the initial altercation between his father and Mr Drake. For the reasons I have already stated, I am unable to accept that submission. 2. In evaluating the degree to which the offender's conduct departed from what would have been a reasonable response to the circumstances as he perceived them, the Crown emphasised the evidence of Dr Pokorny of the three substantial wounds that she had observed on post-mortem examination. The Crown submitted that the offender's use of the knife on even one occasion was an extreme, and wholly disproportionate response to the threat which was posed, and that the excessive nature of the response necessarily increased with each additional blow. 3. In all of these circumstances, the Crown submitted that the offending constituted "a very serious example of a manslaughter offence with an objective gravity falling above the mid-range." [22] The Crown further submitted that the offending was aggravated by the offender's use of a weapon [23] and the fact that the offender was on conditional liberty at the time. Counsel for the offender accepted those aggravating factors. Submissions of the offender 1. Whilst accepting that the offending was obviously serious, counsel for the offender emphasised the need to examine the entirety of the circumstances as the offender perceived them, and then evaluate the degree to which his conduct departed from what would have been a reasonable response. It was submitted that the evidence supported a conclusion that the offender perceived that he had to act to save his own life, as well as that of his father. That said, counsel expressly accepted that the offender's infliction of multiple stab wounds to Mr Drake was an excessive and unreasonable response to any threat which was posed. Counsel also drew attention to the fact that immediately after the stabbing had occurred, the offender had assisted Mr Drake's sister by providing her with a phone to call 000, had gone down to the front of his property to wait for the ambulance to arrive, and had also assisted his wounded father. 2. Counsel for the offender submitted that the offending was mitigated by the fact that the offender's actions were spontaneous, and not part of a planned or organised criminal activity, [24] factors which the Crown accepted. Counsel further submitted that it was significant that although the offender had used the knife, he had not introduced it into the altercation. 3. In all of these circumstances, it was submitted that the offending fell below the mid-range of objective seriousness. Consideration 1. Having regard to the facts that I have found, I am satisfied that the circumstances perceived by the offender were initially brought about by the fact that he had come upon what was an obviously serious physical altercation between Mr Drake and his father. Significantly, attempts were made to separate them by the offender and Mr Drake's sister, all of which were unsuccessful. It was only when the knife was produced by Mr Drake, and a significant injury was sustained to the offender's father, that the offender intervened and stabbed Mr Drake in the abdomen. Clearly, the offender held a belief that in all of these circumstances, stabbing Mr Drake was necessary in order that he defend himself and his father. 2. There is, however, substance in the Crown's submission that what followed was an entirely inappropriate response, and one which escalated with each blow struck. I am satisfied on the basis of Dr Pokorny's evidence that Mr Drake would have been disabled at an early stage. Whilst I accept that the incident happened quickly, and that the offender may have found himself in a confused state, the subsequent infliction of multiple stab wounds to Mr Drake was obviously excessive. It amounted to a response which departed, to a significant degree, from what was reasonable in the circumstances perceived by the offender. Whilst I accept that the offender's initial response to what confronted him was spontaneous, it is impossible to categorise the subsequent infliction of multiple stab wounds in that way. I accept however, that on the basis of my findings it was not the offender who was responsible for introducing the knife into the altercation. I am satisfied that he acted with an intent to inflict really serious bodily injury. 3. Both the Crown and counsel for the offender framed their submissions as to the objective seriousness of the offending by reference to a notional scale of objective seriousness. Adopting that approach, in my view the offending falls slightly below the mid-range of objective seriousness. THE OFFENDER'S CRIMINAL HISTORY 1. The offender has a number of entries on his criminal history. They include driving offences, together with a number of firearm offences which arose from the items found at the time of the offender's arrest. The offender was also convicted of an offence of possessing an offensive weapon in a place of detention, whilst he was in custody awaiting trial. He was sentenced to 6 months imprisonment for that offence. It was common ground that this history disentitles the offender to leniency. THE OFFENDER'S POSSESSION OF KNIVES 1. The statement of Detective Gibson which was tendered by the Crown on sentence made reference to finding a number of knives and related items at the time of the search of the offender's premises following Mr Drake's death. The Crown submitted that this evidence demonstrated that the offender had a "keen interest in possessing knives" and that this was a factor relevant to the issue of specific deterrence. 2. Having a keen interest in possessing knives is not, of itself, criminal conduct, nor does such an interest support a conclusion that the person who holds it will have an increased propensity to use a knife in some illegal or violent way. Moreover, there is no suggestion that the offender's possession of these items constituted an offence. In my view, this evidence is of little or no weight for the purposes of sentencing. THE OFFENDER'S CASE 1. Tendered in the offender's case on sentence was a report of Amanda White, Forensic Psychologist and Clinical Neuropsychologist, of 14 April 2021. Ms White reported that the offender was born on 8 September 2000. He was therefore 18 years and 7 months at the time of the offending and is now 20 years of age. He is an only child. His parents separated when he was 7 years of age due to his father's excessive alcohol consumption. [25] The offender described his father as being "drunk most of the days" and often "passed out", as a consequence of which he had limited parental supervision as a child. [26] This general state of affairs was confirmed to Ms White by the offender's mother, who described the offender as having a "strong emotional pull" towards his father. [27] There is a clear suggestion that any ongoing connection between the offender and his father is not one which is conducive to the offender's best interests. 2. The offender reported to Ms White that he had experienced behavioural problems at school from a young age which resulted in truancy and fighting, leading to him being suspended on approximately 40 occasions. He eventually left school at the end of Year 9. [28] 3. The offender told Ms White that he began consuming alcohol when in Year 8 and that by age 15 he was doing so daily, although this reduced to the point where, in the six month period leading up to the office, his alcohol intake was minimal. [29] He commenced to use marijuana in his early teens which continued until his arrest, at one point reaching a habit of approximately 1g per day although this had also reduced to some degree in the period leading up to the offending. [30] 4. Ms White reported that after leaving school the offender commenced studying a Certificate III in Horticulture and had completed 6 to 7 months of that course before he lost his driver's licence and ceased his enrolment. He told Ms White that he had worked in a casual position in a supermarket, and had otherwise engaged in labouring and maintenance tasks for members of his family. [31] 5. The offender reported to Ms White that since the offending he had experienced significant mood disturbances including anxiety, depression and suicidal ideation, although it appears that these symptoms have subsided to a degree. [32] He is currently prescribed Mirtazapine, a well-known anti-depressant. [33] Psychometric testing administered by Ms White indicated that the offender was experiencing extremely severe levels of anxious and depressed symptomatology, although his stress levels were within the normal range. [34] 6. Based upon the history provided to her, Ms White concluded (inter alia) as follows: [35] In accordance with the DSM-V, there is evidence that he would meet criteria for a diagnosis of Post-Traumatic Stress Disorder with anxiety and depressive symptoms. A comorbid diagnosis of depression, possibly in remission, is also likely. His history suggests that he would have likely previously met criteria for a substance use (cannabis) disorder. He also reports periods of alcohol use well above recommended daily guidelines. Mr Sharpe will require a period of moderate to intensive psychological treatment to address his mental health, both arising from the trauma of the offence as well as more longstanding and entrenched issues, including the nature of his relationship with his father. It is unlikely he will be able to receive the required level of support in custody, and will likely have to take place post-release. Mr Sharpe is at risk of wanting to resume a carer role for his father and taking on his father's issues. He appears to be fiercely protective of his father and is unlikely to have much objectivity in this regard. His insight and judgement regarding his father is also likely to be compromised. As such, this would be an important area for Mr Sharpe to explore with a psychologist post-release and should be monitored accordingly. … His mother is loving and supportive of her son, however also managing her own psychological health. History obtained on interview suggests that she was not aware of or perhaps naïvely did not appreciate the living environment and stress Mr Sharpe was experiencing as a result of his relationship with his father and living with him. Therefore, it will be extremely helpful for Mr Sharpe to have a larger and more balanced supportive network post-release. Mr Sharpe is a young man who currently presents as future orientated. He identified goals of completing his horticultural course and obtaining his own place or residence appear suitable and attainable in the future. He is likely to benefit from some external formal supports post-release to assist him as required to resume study, obtain suitable employment (particularly in light of his criminal record) and when appropriate, housing. 1. The report of Juvenile Justice tendered by the Crown, which was prepared for Local Court proceedings in 2018, sets out an educational history that differs slightly from that reported to Ms White. It records that the applicant originally enrolled in a Certificate III course in Agriculture, before transferring to the course in Horticulture. The report also sets out a number of other positions of employment held by the offender over and above those to which Ms White referred in her report. The authors of the Juvenile Justice report expressed the view that the offender displayed "a good work ethic". Consistent with what was said by Ms White, the report also noted that the offender had developed high levels of anxiety and depression. [36] 2. However, the Juvenile Justice report also stated that the offender had said that he had "never used drugs and that drugs were never a feature of his upbringing". [37] That is diametrically opposed to the history provided to Ms White. The report also noted that the offender had been diagnosed with anxiety and depression in 2014 and that although a mental health care plan was initiated, it was not pursued. [38] As a result the offender was not formally assessed at that time in relation to the mental health symptoms which he had reported. 3. It was agreed between the parties that the issues identified by Ms White are both long-standing and entrenched, and will require a period of moderate to intensive psychological treatment. The parties also agreed that Ms White's view was that the offender did not yet have a conscious awareness of many of the issues that he faces, and that successful treatment will require the offender's unequivocal commitment. 4. There is evidence that the offender suffers from both Depression and Post-Traumatic Stress Disorder. He has been prescribed medication for the former. Whilst there is no evidence of any causal link between those conditions and his offending, I have taken them into account in accordance with the principles set out in Director of Public Prosecutions (Cth) v De La Rosa. [39] SPECIFIC CONSIDERATIONS The offender's offer to plead guilty to the offence of manslaughter 1. It is accepted that in April 2020 the Crown rejected an offer made by the offender to plead guilty to the offence of manslaughter. In light of the jury's verdict, that entitles the offender to a discount of 25%. The offender's youth 1. Counsel for the offender submitted that although the offending incorporated significant violence, and could on one view be described as adult-like behaviour, the offender's youth had necessarily played a role in the manner in which the offending had occurred, and was an important consideration on sentence. It was submitted, in particular, that an older and more mature person would have assessed the threat posed by Mr Drake in a different way, namely by disarming him and not stabbing him. The Crown did not take issue that the offender's youth was a relevant consideration, but emphasised the seriousness of his offending. 2. The principles governing the relevance of youth in sentencing were set out by McClellan CJ at CL in KT v R [40] and may be summarised as follows: (i) considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation (at [22]); (ii) the law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age (at [23]); (iii) where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult (at [23]); (iv) although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct (at [24]); (v) the emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself, and has committed a crime of violence or considerable gravity (at [25]); (vi) in determining whether a young offender has engaged in "adult behaviour", the Court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence. Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society (at [25]); and (vii) the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity. A 'child offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age. However, the younger the offender, the greater the weight to be afforded to the element of youth (at [26]). 1. In BP v R [41] Hodgson JA accepted the correctness of those principles, but emphasised that Courts should not be "over-ready" to discount the relevance of an offender's youth on the basis that he or she acted like an adult. In the same case, Johnson J said: [42] [75] [T]he law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. The law considers youth and not just biological age. Where immaturity of an offender is a significant contributing factor to the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult." 1. Although the report of Ms White does not directly address what, if any, effect the offender's immaturity may have had on his offending, [43] the offender's youth is clearly a relevant factor on sentence. However, in a case of serious offending such as this, its significance is reduced, at least to some degree. In JM v R [44] Simpson J (as her Honour then was) said the following in the context of a sentence imposed for an offence of inflicting grievous bodily harm with intent: It seems to me that the weight of authority is that the seriousness of an offence is relevant to the emphasis that can be given to the youth of an offender. That does not mean that youth is not an important consideration; but retribution and deterrence cannot, in a case as serious as the present, give way entirely or even substantially to the interests of rehabilitation… 1. In R v Mastronardi [45] Sully J made the following observations in the context of sentencing a youth for an offence of armed robbery: … Youth – whether it is real, or merely comparative, or defined with a generous elasticity – is not a cloak of convenience behind which, relevantly, those who deliberately engage in armed robbery can shelter from the just consequences of their conduct. 1. Whilst the observations of Sully J and Simpson J were made in the context of different offending, they are no less applicable to sentencing for offending of the present kind. I have taken the offender's youth into account, as it is clearly a relevant factor. However for the reasons I have stated, the seriousness of his offending, and its adult-like nature, renders it of less weight than might otherwise have been the case. Remorse 1. At the conclusion of his evidence in chief, and immediately before the commencement of cross-examination, the offender said: [46] Just before you start, I'd like to say my condolences to the family. It was a very terrible event and I'm very sorry for your loss. 1. In the course of her report, and when dealing with the offending, Ms White said: [47] He said that at the time, he didn't feel he was acting in an excessive manner, only enough to get the deceased "to stop". He said he didn't know he was deceased until (the) event was over. He said he had never experienced such fear in his life. He conveyed feelings of sadness for Mr Drake's family. He commented that he had cried several times during the course of the trial and seeing the impact his actions had on the victims' family. He noted that the events had been traumatic for everyone involved. He said "I thought I was going to die". [The offender] said that he had found the trial extremely difficult, particularly going over the events. … He said that he felt no blame toward anyone for the events. 1. It was the submission of the Crown that even at their highest, these various statements fell short of the offender accepting responsibility for his actions, and indicated that the offender was not genuinely remorseful. Counsel for the offender submitted, in effect, that these expressions were genuine and had been conveyed by the offender in his own way, and as best he could. 2. Section 21A(3)(i) of the Sentencing Act provides that remorse shown by an offender for an offence is a mitigating factor, but only if the offender has: 1. provided evidence that he or she has accepted responsibility for his or her actions; and 2. acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both). 1. I am prepared to accept that the second of those requirements has been satisfied by the offender's statement made in the course of giving evidence. That statement appeared to me to be genuine and was generally consistent with what he later said to Ms White. 2. However, the requirement that an offender provide evidence that he or she has accepted responsibility for his or her actions is more problematic. In particular, the offender's assertion to Ms White that he did not consider that he was acting in an excessive way fails to acknowledge the obviously excessive nature of his response, as well as the verdict of the jury. It is, in my view, somewhat at odds with an acceptance of responsibility. 3. For the reasons I have given I am satisfied that he has acknowledged the loss of Mr Drake's life. I have no doubt that he regrets what occurred. But regret is not to be equated with remorse. In the circumstances, I am not satisfied that the offender has shown genuine remorse within the meaning of s 21A(3)(i) of the Sentencing Act. The offender's prospects of rehabilitation and his likelihood of re-offending 1. Ms White noted [48] that the offender's mother had already made arrangements for psychological treatment to be undertaken by the offender upon his release from custody. Steps have also been taken to limit the contact between the offender and his father although given that the offender is an adult, the practical utility of those steps remains to be seen. The offender indicated to Ms White that he had a desire to resume his horticulture study and complete that training. [49] Against this background, Ms White reported: [50] Despite his current circumstances, he expressed hope and optimism for his future, and a strong will to lead a prosocial life. He said that post-release, he would like to see a psychologist to assist him with his symptoms, to address the incident and to develop coping mechanisms moving forward. 1. The testimonials provided by the offender's grandfather and aunt demonstrate their unequivocal and ongoing support for the offender. The testimonial of his mother expresses a similar degree of support, and corroborates the history provided by the offender to Ms White which I have previously set out in relation to his upbringing, and specifically in respect of his relationship with his father. 2. Whether the offender realises his stated goal of leading a prosocial life remains to be seen. On the evidence before me, accepting and adhering to psychological treatment would seem to be a key factor in that regard. The offender clearly has the support of a number of close family members. Importantly, they include his grandfather and aunt, with each of whom he spent considerable periods of time in his formative years, and with each whom he formed a close bond, along with his mother. Whilst his extended family support and the availability of treatment are necessarily important factors, his prospects of rehabilitation depend, in large measure, upon his preparedness to be unequivocally committed to his rehabilitation. For that reason, I am guarded about his prospects of rehabilitation. Largely for the same reason, I am guarded about the likelihood of his reoffending. 3. Based on the report of Ms White, which the parties agree evidences long standing and entrenched psychological issues, and in light of her opinion as to the need for a level of ongoing psychological intervention which is not likely to be available to the offender until his release, I am satisfied that a longer period on parole would assist the offender to reintegrate into the community, particularly in light of his youth. I therefore make a finding of special circumstances and propose to adjust the statutory ratio between the total sentence and the non-parole period. The commencement of the sentence 1. The offender was arrested for this offence on 11 July 2019 and was refused bail. He remained in custody solely in respect of this matter until 3 March 2020. Between 3 March 2020 and 2 September 2020, the offender served a 6 month sentence for (inter alia) possessing an offensive weapon in a place of detention. Since the expiration of that sentence until today, he has been in custody solely in respect of this offence. It is agreed that the offender has therefore spent a total of 469 days in custody referrable solely to this matter. 2. Whilst accepting that it would be open to this Court to commence any sentence on and from 10 January 2020 counsel for the offender submitted that I should commence the sentence at an earlier date. The principal factors relied upon by counsel in support of that submission were firstly, the fact that the offence of possessing an offensive weapon was committed by the offender when he was in custody (bail refused) for this offending, and secondly, the principle of totality. 3. Setting the commencement date of the sentence involves the exercise of a discretion. [51] In my view the factors relied upon by counsel for the offender, whether considered singularly or in combination, do not justify the making of an order backdating the sentence beyond 10 January 2020. In my view there is no proper basis for making an order which would have the effect of rendering the sentence imposed for possessing an offensive weapon in a place of detention partially concurrent with the sentence that I propose to impose for the manslaughter offence. Further in my view, the application of the totality principle does not warrant the sentence being backdated. The totality principle requires the Court to review any total sentence and consider whether it is just and appropriate. [52] Having done so, I am satisfied that the application of that principle in the present case does not warrant taking the course advocated by counsel for the offender. For these reasons, I propose to order that the sentence commence on 10 January 2020. ORDERS 1. I make the following orders: 1. The offender is convicted of the manslaughter of Andrew Peter Drake. 2. The offender is sentenced to imprisonment for a period of 7 years and 6 months to date from 10 January 2020 and to expire on 9 July 2027. 3. I specify a non-parole period of 4 years and 9 months imprisonment to date from 10 January 2020 and to expire on 9 October 2024. 4. The offender will be eligible for release on parole on 10 October 2024 and his sentence will expire on 9 July 2027. ********** Endnotes 1. Exhibit A on sentence. 2. Exhibit 1 on sentence. 3. R v Medich (No. 43) [2018] NSWSC 886 at [16]-[25]. 4. R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587. 5. Crimes Act 1900 (NSW), s 421. 6. [2015] NSWCCA 193 at [44]. 7. Commencing at T42.34. 8. Commencing at T44.38 9. T463.28-T463.30 10. Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [5]. 11. Isaacs at 380. 12. R v Shalala (CCA (NSW) (Lee CJ and CL; Carruthers and Wood JJ) 1 June 1989 (unreported). 13. T371.47-T371.50; T373.14-T373.16. 14. Commencing at T375.6. 15. Commencing at T378.26. 16. Commencing at T379.26. 17. Exhs. E1 and E2. 18. Commencing at T378.39. 19. Exhs. K1 and K2. 20. T387.46-T387.47; Exhs. N1 and N2. 21. T181.37-T182.15. 22. Crown written submissions at [16]. 23. Sentencing Act s 21A(2)(c). 24. The Sentencing Act, s 21A(3)(b). 25. At p. 3. 26. At p. 3. 27. At p. 7. 28. At p. 4. 29. At p. 5. 30. At p. 5. 31. At p. 4. 32. At p. 5. 33. At p. 5. 34. At p. 9. 35. At p. 9-11. 36. At p.2. 37. At p.2. 38. At pp.2-3. 39. (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [171]. 40. [2008] NSWCCA 51 at [22]-[26]; (2008) 182 A Crim R 571. 41. [2010] NSWCCA 159 commencing at [3]; (2010) 201 A Crim R 379. 42. At [75]; see also HJ v R [2014] NSWCCA 21 at [56] per Garling J. 43. C/f Clarke-Jeffries v R [2019] NSWCCA 56 at [50] where there was unchallenged evidence before the sentencing judge that immaturity had played a part in that offender's conduct. 44. (2012) 223 A Crim R 55; [2012] NSWCCA 83 at [108]. 45. [2000] NSWCCA 12 at [20]. 46. T391.10 -T391.11. 47. At p.8. 48. At p.8. 49. At p.4. 50. At p. 5. 51. Dellow v R [2020] NSWCCA 301 at [54] per Leeming JA (Bellew and Wright JJ agreeing) and the authorities cited therein. 52. Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at [8]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 April 2021