Supreme Court New South Wales Medium Neutral Citation: R v Warren Scott (No 3) [2021] NSWSC 1646 Hearing dates: 7 December 2021 Date of orders: 15 December 2021 Decision date: 15 December 2021 Jurisdiction: Common Law Before: N Adams J Decision: For the offence of manslaughter I sentence you to imprisonment for 9 years to commence on 4 June 2019 and to expire on 3 June 2028 with a non-parole period of 6 years. You will become eligible for parole on 3 June 2025. Catchwords: SENTENCING – remarks on sentence – manslaughter – substantial impairment – unprovoked stabbing attack on victim – where offender had been diagnosed with schizophrenia but continued to consume alcohol and was non-compliant with medication – where offender diagnosed with mild intellectual disability and chronic alcoholism – assessment of moral culpability where offender refused interventions for alcohol consumption – offence committed while on ICO for assault while intoxicated – plea of guilty – some evidence of remorse – guarded prospects of rehabilitation Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), s 25C Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 22A, 25E, 44(2), 47(3) Crimes Act 1900 (NSW), ss 23A, 24 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Paterson v R [2021] NSWCCA 273 R v Antaky [2007] NSWSC 1047 R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 R v Kenneth Noel White [2009] NSWSC 809 R v Parker (No 2) [2016] NSWSC 813 R v Potts [2001] NSWSC 753 R v Tikaram [2016] NSWSC 1716 R v Warren Scott (No 2) [2021] NSWSC 1201 R v Warren Scott [2021] NSWSC 1004 The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37 Category: Sentence Parties: Regina (Crown) Warren Anthony Scott (Offender) Representation: Counsel: Ms N Keay (Crown) Ms M Avenell (Offender) Solicitors: Solicitor for Public Prosecutions (NSW) Aboriginal Legal Service NSW/ACT File Number(s): 2019/105874 Publication restriction: Nil. remarks on sentence 1. On 23 August 2021, Warren Scott was arraigned before me on an indictment charging him with the murder of Edward Carter. The Crown case was that Mr Scott had stabbed Mr Carter 31 times causing his death. Mr Scott acknowledged that he had done so, but argued that he was substantially impaired at the time of the killing, within the meaning of s 23A(1) of the Crimes Act 1900 (NSW), such as to reduce his liability from murder to manslaughter. 2. The trial proceeded before me sitting without a jury. I had earlier acceded to Mr Scott's application for his trial be heard by a judge alone: R v Warren Scott [2021] NSWSC 1004. 3. On 22 September 2021, I found Mr Scott not guilty of murder but guilty of manslaughter on the basis of substantial impairment: R v Warren Scott (No 2) [2021] NSWSC 1201 ("Scott (No 2)"). The proceedings were stood over for submissions on sentence on 7 December 2021 at which time I reserved my decision until today. 4. At the time of his death, Mr Carter, who I will refer to as the deceased, was a 49 year old Aboriginal man. Mr Scott, who I will refer to as the offender, is now a 39 year old Aboriginal man who, in addition to a myriad of medical problems, suffers from schizophrenia, a mild intellectual disability and chronic alcoholism. 5. Most of the factual matters at trial were not in dispute. Although it was common ground that the offender suffered from schizophrenia, the Crown case was that it was his excessive alcohol consumption, rather than his mental illness, which led him to lose control and kill the deceased. 6. I have already summarised the Crown case in some detail in Scott (No 2) but it is necessary for me to identify the facts upon which the offender is to be sentenced. In addition to determining the relevant facts, I am required to identify and consider all other factors relevant to the sentence and ultimately make a value judgment as to what is the appropriate sentence in the circumstances of this case. [1] Facts on sentence 1. As at 4 April 2019, the offender lived alone in Bega. His mother lived in the nearby town of Eden. As at 3 April 2019, the offender had been observed to be drinking during the day in the Woolworths carpark over the previous two weeks. On that day he telephoned a family friend, Kevin Dixon, and asked him to drive him to his mother's place as he was "freaking out" and wanted to see her. Mr Dixon explained that this had happened before; the offender often became paranoid when not taking his medication. Mr Dixon picked him up sometime after lunch. 2. Mr Dixon described the offender as unusually quiet during the car trip to Eden. The only thing he recalled him saying was "am I on a boat?". Mr Dixon said it "wasn't Warren sitting in the car". Mr Dixon described the offender as usually "happy… laughing and joking" but on this occasion the offender was completely different and had a "blank stare" as though his mind was somewhere else. He dropped the offender at his mother's home in Eden and drove back to Bega shortly thereafter. The deceased was present at that time. After Mr Dixon left, the offender, the deceased and Ms Scott drank alcohol into the evening. The deceased paid for pizza for the three of them for dinner. 3. The evidence of all witnesses who knew both the deceased and the offender was to the effect that the two men always got on well together. There was no evidence of them ever having argued. 4. At about 11.30am on 4 April 2019, a neighbour, Bradley Troy, drove the offender to purchase alcohol. He believed the offender had been drinking but otherwise did not observe anything unusual about him. Upon the offender's return from the bottle shop he and the deceased and Ms Scott consumed alcohol, listened to music and were having a "good time". Ms Scott and the deceased were drinking cask wine and the offender was drinking port wine. 5. Without any warning, the offender suddenly jumped up, moved quickly to the kitchen and took "the biggest knife" in the drawer out. He approached his mother "full of rage". He stood close to her, had the knife at her throat and said, "I'm sick of this" and "where do you want it?". She calmed him down by saying, "I'm your mother" and "why are doin' this for?". He returned the knife to the kitchen and returned to sit beside his mother. He calmed down a bit while she continued talking. 6. About 10 to 20 minutes later the offender grabbed a smaller knife from the kitchen and again pointed it at his mother's neck while saying "where do you want it, where do you want it?". She screamed to the deceased for help. The deceased approached them, which distracted the offender and Ms Scott was able to run from the premises. Once outside she yelled out to her neighbour (and relative) Ms Stacey Arvidson for help. Police were called to the scene twice but took some time to arrive. In the interim, the offender was heard to be yelling and screaming in an aggressive and abusive manner. Although voices could be heard from inside the premises, the actual words spoken could not be made out. 7. Police did not arrive until about 40 minutes after the first 000 call from Ms Arvidson. Whilst they were waiting, Ms Scott and Ms Arvidson separately peered through the window to check on the deceased. Ms Scott saw that the offender had the deceased pinned down on the lounge with a knife to his throat. She told the offender to let the deceased go. Ms Arvidson also looked through the window at a later stage at which time she saw the deceased sitting and shaking and the offender smoking a cigarette next to him. 8. Shortly afterwards, Ms Arvidson heard the offender and the deceased calling out to her. She returned to the window and saw the two men were in the same position, but the deceased was shaking a little bit more. The offender had a knife pressing against the deceased's skin and told her to get his mother inside. She described what he said as being "confused". She walked off. Her evidence was that there was no way of reasoning with the offender after what she had seen. 9. Prior to the arrival of police Ms Scott described the offender as looking like he was not "in his own state of mind", "possessed", and like "something evil you see in a movie". Ms Arvidson described him as being "eerily calm", with a "possessed look in his eyes". She also described him as being "in a different head space" and different from how she had observed him to be when intoxicated. Police evidence 1. Senior Constables Tilley and Chippendale arrived at the premises around 3:47pm. They assessed the situation from outside the unit. Senior Constable Tilley could hear muffled swearing from inside the house. He knocked on the front window and asked who was inside. He heard a male voice respond, "Fuck off pigs, go away." The male voice kept swearing and then said, "Fuck off if you come in here I'm going to stab youse." Senior Constable Tilley asked if the deceased was inside and heard a second male voice that he could not make out clearly. The second male voice sounded "calm but urgent". He asked the offender to open the curtains so he could see that the deceased was "okay". The curtains were then opened for about one second and the officer saw the offender standing behind the deceased with one arm around his neck and the other hand holding a knife between the deceased's eyes. He said that the offender looked him straight in the eyes and was "perfectly still" and "emotionless". 2. The curtains were then closed, and police heard continuous swearing and banging from inside the house. It sounded like a struggle was happening. The deceased was then heard to say, "You stabbed me you cunt" and "go on, stab me again cunt". The offender was then heard to say, "I'm going to" and "I'm going to watch you bleed out cunt". The next thing police heard was a "grunting, gurgling" sound at which time they decided to enter the house. 3. Senior Constable Chippendale banged on the door and shouted for the offender to open it. The offender opened the front door momentarily and then shut it. Police tried to open it, but it appeared that the offender was leaning on it from the inside. The offender then opened the door and stood in the doorway. Senior Constable Tilley ordered the offender to get on his knees, which he did, at which time he was handcuffed. 4. The deceased was lying on the armrest of the lounge, slumped over with blood coming from his mouth. The officers asked the offender where he had stabbed the deceased and he said, "If you give me a cigarette I'll tell you where I stabbed him." The officers kept asking as they performed CPR on the deceased and the offender eventually said, "I stabbed him in the legs and the chest." Senior Constable Tilley could see a steak knife on the coffee table and no other weapons. The deceased died later at the scene. 5. Sergeant Blanch arrived and escorted the offender to a police van and cautioned him. The offender stated, "I'm going on death row. I just stabbed him in the heart." The offender asked if he could have a cigarette before getting in the police truck. Sergeant Blanch agreed. The offender repeatedly asked to speak to his mother before leaving in the police truck. The offender's brother came to speak to him and told him he needed to "get off the piss" and that he should be ashamed of himself to which the offender responded, "I'm ashamed of what I have done. I'm going on death row. I just killed him." 6. When taken to the police station the offender was charged with murder and declined to be interviewed. He was treated in custody for alcohol detoxification and presented as paranoid, irritable, guarded and hypervigilant. He was observed to be "acutely unwell" on 9 and 14 April 2019, some 10 days after his arrest and after he had detoxed. His mental state had reportedly improved somewhat by 23 April 2019, 19 days after his arrest. 7. Of the 31 wounds inflicted on the deceased, one wound to the chest extended through his third rib into the left lung, transecting a pulmonary vein. The wound above the left knee perforated the femoral artery. Each of these wounds was capable of causing death. I am satisfied that the deceased died as a result of a combination of the two. 8. The police gave differing accounts as to the degree of the offender's intoxication which I have summarised in Scott (No 2). [2] I was satisfied that the offender had consumed at least one and a half bottles of port on 4 April 2019 but he was a chronic alcoholic and there was no evidence as to his level of tolerance. My ultimate finding was that although the offender must have been intoxicated to some extent, he was not slurring or physically affected by his intoxication and could respond to questions asked by police. Objective seriousness 1. Although the offender is to be sentenced for manslaughter rather than murder, the starting point is that all crimes of homicide are serious because they each involve an attack on the sanctity of human life. 2. The maximum penalty for the offence of manslaughter is 25 years imprisonment. [3] There is no standard non-parole period ("SNPP") prescribed for obvious reasons: the offence of manslaughter produces the greatest variety of circumstances affecting culpability of any other criminal offence. It follows that a wide range of sentences can be imposed. [4] As Spigelman CJ observed in R v Forbes, [5] manslaughter is almost unique in its variety and may vary from a joke gone wrong to facts just short of murder. 3. The objective facts are very grave. The deceased was stabbed 31 times in his own home after being detained for at least an hour by the offender during which time the latter was wielding a knife and menacing him. When police tried to engage with the offender he ignored them. He also largely ignored their inquiries concerning the safety of the deceased. The attack on the deceased was frenzied and unprovoked. The offender belatedly advanced a motive for the brutal killing which I rejected. I am satisfied beyond doubt that the offender intended to kill the deceased. 4. Against those facts, I must sentence the offender consistent with my finding [6] that the offender's capacity to understand events, judge whether his actions were right or wrong and to control himself was substantially impaired at the time of the stabbing as a result of his underlying condition of schizophrenia. Given the language of s 23A(1) of the Crimes Act including the words "so substantial as to warrant liability for murder being reduced to manslaughter" it is to be accepted that the question of whether a person is substantially impaired is not binary; a person may be substantially impaired to a degree extending beyond that which is required for a finding of substantial impairment under s 23A(1). As R S Hulme J observed in R v Antaky: [7] "Some impairment may be gross, some may only just fall within the description of 'substantial' so as to warrant the reduction". 5. I have summarised the offender's medical history in some detail in Scott (No 2). [8] For the purposes of these reasons I note that he has an extensive history of hospital admissions commencing in 2006 when he was 23 years old. That history indicated that the offender had been hospitalised for epileptic seizures 21 times between 2006 and 2019, often sustaining injuries as a result of these episodes. He was hospitalised for hallucinations or intoxication a further 10 times. The offender self-discharged from hospital against medical advice or without consulting a doctor on seven occasions. 6. The offender was detained under the Mental Health Act on five occasions for treatment in relation to his schizophrenia, alcohol consumption and seizures. In November 2011 the Mental Health Review Tribunal made a six-month community treatment order in relation to the offender and in February 2012 a six-month inebriate control order was made in the Bega Local Court. 7. The offender was first prescribed Olanzapine for his schizophrenia in 2008 and has been prescribed it ever since, although on several occasions he reported not taking it due to alcohol consumption, most recently in March and April of 2019, just prior to the killing. 8. I have summarised the detailed expert evidence given at trial by Dr Kerri Eagle and Dr Olav Nielssen in Scott (No 2). [9] Dr Eagle's diagnosis was that the offender's history and presentation was consistent with schizophrenia and that he had described "persistent attenuated symptoms of psychosis, specifically intermittent auditory hallucinations with retained insight". Dr Eagle believed this reflected inadequate antipsychotic treatment and noted that his relapses appeared to have been in response to excessive alcohol consumption and intoxication. Dr Olav Nielssen diagnosed the offender with chronic psychotic illness, either schizophrenia or a chronic illness secondary to alcohol related brain damage, alcohol use disorder and probable alcohol related brain injury. 9. In addition to the evidence of these two forensic psychiatrists, a report was tendered by Dr Susan Pulman, forensic psychologist and clinical neuropsychologist. She examined the offender on 28 July 2021 and noted that the offender displayed negative symptoms of schizophrenia and became agitated during the interview. Dr Pulman administered a range of cognitive tests and concluded that the offender's "intellectual functioning [fell] within the Extremely Low range and at the 1st percentile consistent with a mild intellectual disability." Dr Pulman stated that it was difficult to determine the impact of alcohol abuse on his cognitive functioning as there were no significant differences between any of his abilities. 10. The Crown submitted that the offender's impairment was not significantly greater than that which established the partial defence whereas on behalf of the offender it was submitted that his impairment was well above that required to establish the partial defence, rendering the offence less serious than was contended for by the Crown. I have considered these competing submissions. It is to be accepted that I was satisfied that the offender was impaired in all three capacities contemplated by s 23A(1)(a), but I have found the assessment of the extent to which he was substantially impaired beyond what is contemplated by the partial defence difficult to assess. The offender was not floridly psychotic immediately after the killing. He was able to tell police what he had done and he acknowledged the wrongfulness of his actions by stating that he would be going to gaol for the rest of his life for what he had done. I was satisfied that just because he realised that what he had done was wrong after the killing did not mean that he was not substantially impaired at the relevant time, particularly given the descriptions of his mother and the neighbour that he looked "possessed" at that time as well as the observations of the police witnesses. As I have already noted, he remained unwell in custody for at least 10 days even after he had withdrawn from alcohol. 11. There can be no doubt that the offender has suffered the effects of schizophrenia for some time. This is not a case, as often occurs, when a diagnosis of this type is made for the first time once an offender is charged with a serious offence. 12. I do not propose to assess where this particular crime of manslaughter is to be placed on some hypothetical range of manslaughters. As Beech-Jones CJ at CL recently observed in Paterson v R [10] to do so is not obligatory, unlikely to be of much utility and best avoided. 13. Having regard to the circumstances of the killing and the nature and extent of the substantial impairment I have arrived at an assessment of this offence as being a moderately serious example of manslaughter by substantial impairment. Subjective case 1. The offender's background was summarised in the report of Dr Pulman, although she noted that the offender declined to discuss in detail his family history, alcohol use and mental health. 2. The offender was born in Victoria, the only child of his parents' union, although he has two half-siblings. The offender never met his father and denied any history of abuse. He said that his mother used to drink "a lot". The offender reported that he used to "go walkabout during high school" and frequently got into trouble. He was placed in a special class but left halfway through Year 8. He does not have any history of employment after leaving school. 3. The offender reported that he commenced using marijuana at the age of 12 or 13 and alcohol at the age of 14. By the age of 16 he was consuming alcohol every day. The offender denied any family history of mental health conditions. 4. The offender has a criminal history dating back to 1997 (when the offender was 14 years old) both in New South Wales and Victoria. Those offences included larceny, destruction of property, common assault and breaches of apprehended domestic violence orders. He was mainly sentenced to fines and on some occasions to short periods of imprisonment. In 2012, the offender was convicted of assault occasioning actual bodily harm and sentenced to 12 months imprisonment. 5. Significantly, it is an aggravating factor that at the time that the offender killed the deceased on 4 April 2019 he was subject to an intensive corrections order (ICO) imposed on 27 September 2018 for an assault on his mother. I was provided with the fact sheet of that matter which discloses that it concerned an unprovoked attack on her while she was on the ground and after the offender had consumed a significant amount of alcohol. The similarity between those circumstances and that of the killing of the deceased is a matter of some concern. 6. The offender was being supervised to manage his alcohol consumption at the time of the killing and confirmed that he knew it was a condition of his ICO that he not consume alcohol. On 3 January 2019, he told his Community Corrections officer that he knew he had little control over his thoughts when he was drunk and found it difficult to "walk away" from situations. On 13 February 2019, when he was hospitalised for alcohol related issues the offender said he knew that once he started drinking he could not stop and then "everything else starts to go down hill/fall apart". It was further noted on that date that the offender had refused to attend residential rehabilitation and "refused all [alcohol and drug related] interventions". On 2 April 2019, he told Community Corrections he had been drinking heavily for over a week and not taking his medication but said he did not want to stop drinking or go to rehab. The Breach Report to the State Parole Authority dated 5 April 2019 records that the offender was "highly resistant to addressing his ongoing alcohol issues" by residential rehabilitation. 7. The evidence adduced at trial satisfies me that the offender's response to supervision deteriorated from January 2019 until his arrest on 4 April 2019 due to his failure to comply with the abstention condition of his ICO. Even having regard to his mild intellectual disability, his lack of insight into the risks involved in his excessive drinking is of concern and relevant to my assessment of his prospects of rehabilitation, his dangerousness and his moral culpability, which I will consider further below. 8. In addition to his mental health history, the offender suffers from a number of medical conditions arising from his longstanding alcoholism. He has type 2 diabetes, epilepsy and a recurrent pericolic abscess requiring drainage. In addition, he has been diagnosed with chronic anaemia and has lost around 20kg of weight in the past two years in custody. 9. On 30 August 2021, during his trial, the offender was admitted to the Prince of Wales Hospital following a routine colonoscopy in which a stage two sigmoid colon adenocarcinoma was found. The offender underwent surgery on 31 August 2021 for the removal of that cancer. He was discharged on 3 September 2021. A review on 7 October 2021 found no malignancy in his lymph nodes and "predominantly low risk features" in the adenocarcinoma. The treatment plan was to conduct ongoing surveillance over the next five years, noting that chemotherapy was found to be unnecessary. 10. It was not suggested that the offender could not receive adequate treatment for these conditions in custody but the Crown accepted, consistent with the principles in Director of Public Prosecutions (Cth) v De La Rosa [11] ("De La Rosa") that his mental illness and mild intellectual disability are likely to make the conditions of his incarceration more onerous. Moral culpability 1. As Beech-Jones CJ at CL recently observed in Paterson, [12] an assessment of an offender's moral culpability extends to a consideration of some of their personal circumstances, including circumstances which may affect their capacity to reason, appreciate the wrongfulness of their actions or control their conduct. 2. One such factor relevant in this case is the offender's background of social deprivation as noted by the High Court in Bugmy v The Queen. [13] Although the evidence as to the circumstances of the offender's childhood was somewhat sparse, the Crown did not dispute the account given to Dr Pulman, summarised above. Accordingly, I am satisfied that his moral culpability is reduced to some extent on this basis. 3. Another factor relevant to the assessment of moral culpability is the offender's mental illness and mild intellectual disability. In Muldrock v The Queen [14] the High Court observed that an offender's lack of capacity to reason as to the wrongfulness of certain conduct will, in most cases, substantially lessen his or her moral culpability. This is because the retributive and denunciatory aspects of a sentence are considered less appropriate in such cases. 4. Although an offender's moral culpability can be reduced by virtue of an intellectual disability and/or mental illness, there are countervailing effects of these conditions on the various purposes of sentencing. As Gleeson CJ observed in R v Engert [15] in the context of the sentencing of mentally ill offenders: "… facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender." 1. With respect to the relevance of the offender's mental illness to his sentence, it is a troubling feature that he continued to drink alcohol at a problematic level and chose not to take his medication knowing the consequences of this. The offender told Dr Eagle and Dr Nielssen that he did not take his medication when he was drinking. He told Dr Nielssen that when he did not take his medication he could not sleep, did not like loud noises, would get paranoid and sit in his room and think other people were talking about him. 2. As I observed in Scott (No 2), [16] as a general rule, the community expects mentally ill persons who know that there will be serious consequences if they fail to take their medication to do their best to remain compliant. I have sought to reconcile the evidence of the offender's mild intellectual disability with his statements to the experts that he understood the negative consequences of drinking to excess and failing to take his medication. 3. Given that the evidence of what the offender told the experts in this regard was not challenged, I am satisfied beyond reasonable doubt that the offender was aware of the negative side effects if he drank to excess and ceased to take his medication and did so anyway. [17] I am satisfied that this finding ameliorates the extent to which his moral culpability is reduced although I am satisfied it is nonetheless reduced to some extent. It also means that weight needs to be given to the protection of society and specific deterrence. Plea of guilty 1. The offender offered to plead guilty to manslaughter on 9 December 2019, before the matter was committed for trial. That plea was not accepted by the Crown. The offender is thus entitled to a discount of 25% for the utilitarian value of his plea. [18] 2. The Crown also accepted that the Court could impose a lesser penalty than otherwise would have been imposed on the basis that the trial proceeded efficiently during the lockdown period including by the tender of recorded statements from witnesses which facilitated the administration of justice. [19] I propose to have regard to the efficient running of the trial as a factor relevant to mitigation on sentence. Remorse 1. The Crown accepted that when the offender spoke to the forensic psychiatrists he told them that he regretted what happened. Despite this, it was submitted on behalf of the Crown that there was no real sense of acknowledgement of the harm occasioned by his conduct. 2. It was submitted on behalf of the offender that there was some evidence of remorse arising from the offender's offer to plead guilty to manslaughter in the Local Court and his acknowledgment that he would be going to gaol shortly after the stabbing. 3. The offender did not give evidence at the proceedings on sentence, but he did give evidence during his trial. He delivered his evidence in a flat and emotionless manner which was no doubt the result of both his medication and the symptoms of his mental illness. He easily became irritated in his evidence which accords with the accounts of all the expert witnesses who interviewed him. I could detect no signs of remorse in his evidence. Despite this, I propose to sentence the offender on the basis that his mild intellectual disability and mental illness may have impacted upon his ability to express remorse and that there was some limited evidence of remorse on his part to which I will have regard. Victim impact statement 1. A victim impact statement (VIS) prepared by Ms Tina Sahin, the deceased's daughter, was tendered to the Court pursuant to s 28(3) of the Sentencing Act. [20] Ms Sahin described the cultural torment and sorrow she experienced in the aftermath of her father's death while trying to bring his body back home to country. She described the deceased as a proud Kurnai man and a happy, gentle soul, whose love radiated. 2. The deceased had four children and ten grandchildren at the time of his death. He loved singing, horses and his grandchildren. Ms Sahin described the heartbreaking nature of the cruel and violent attack her father suffered and imagining the fear he would have felt in his last moments. She described the grief felt by herself, her siblings and her children, including suffering from post-traumatic stress disorder, for which she had to leave her job and now attends counselling sessions. Ms Sahin's children have also experienced trauma as a result of their grandfather's death. 3. The Crown did make an application for the VIS to be taken into account under s 28(4) of the Sentencing Act. I propose to have regard to it in the manner required by s 3A(g) of the Sentencing Act, namely, that one of the purposes of sentencing is to recognise the harm done to the victims of the crime and the community. In sentencing the offender I have had regard to the fact that every unlawful taking of a life harms the community in some way. It is clear that Mr Carter's senseless death has had a significant impact on those who loved him. No sentence that the Court might impose could adequately reflect that loss and no sentence could possibly ease the grief of those who were close to him. On behalf the Court, I extend my condolences to the family and friends of Mr Carter for their loss. Future prospects 1. The Crown submitted that the offender does not have good prospects of rehabilitation given his history of non-compliance and re-offending whilst on conditional liberty. On the offender's behalf, it was submitted that his prospects were "at least reasonable". This submission was based on the fact that since his incarceration on 4 April 2019 his condition has stabilised, and he appears to be compliant in the custodial environment. It was submitted that, given it is inevitable he will be serving additional time in custody significantly longer than any previous period of imprisonment (with its associated abstinence from alcohol), his prospects of rehabilitation are improved. 2. I have considered these competing submissions. The offender's biggest risk factor is excessive alcohol consumption leading to cessation of medication. I am satisfied that if the offender is able to remain alcohol free and compliant with his medication he has reasonable prospects of rehabilitation. The question of whether he would be able to do so, given his long history of relapses, remains unknown. 3. Although I am satisfied that the offender has some prospects of rehabilitation, my finding on this issue is necessarily guarded. Comparable cases 1. The Crown provided a number of cases which, it was submitted, would assist in the judicial task I am to perform. Counsel for the offender relied in particular on the following two comparative cases from that list. 2. In R v Potts [2001] NSWSC 753 the offender, who had suffered from schizophrenia since his teenage years, killed his father, who was his primary carer. Their relationship had been "marred by conflict" and the offender claimed that his father had provoked him. Hidden J found that the offender was not a continuing danger to society as the offending "arose from his relationship with his father" and it was "unlikely that he would re-offend in such a violent manner". But for the offender's plea of guilty, his Honour would have imposed a sentence of 9 years. The offender was sentenced to 7 years imprisonment with a non-parole period of 3 years and 9 months. 3. In R v Tikaram [2016] NSWSC 1716 the offender, who suffered from untreated schizophrenia, killed his father during an argument. Their relationship included a "history of domestic violence" including one incident in which the offender's father struck him with a metal item causing a traumatic brain injury. The offence was found to be "at the low end of objective seriousness". The offender was sentenced to 6 years imprisonment with a non-parole period of 3 years. 4. Although the principles derived from these decisions are of assistance, the circumstances of those two cases concerned a dispute which arose in the context of an otherwise abusive or fraught relationship. That is very different to this case. I have found two other cases provided by the Crown to be more factually comparable to the present case. 5. In R v Kenneth Noel White [2009] NSWSC 809 ("White") the offender killed the deceased, who lived in a nearby unit, by stabbing him. The offender was also stabbed several times by the deceased. The offender was 21 years old at the time of the offence and had been diagnosed with schizophrenia at the age of 14. He began using cannabis and drinking heavily at the age of 18. Hidden J noted that it was necessary to consider whether the offender should have been aware of the possible effects of drinking and neglecting his medication on his behaviour. His Honour found that there was no evidence of any violence in the offender's history (the offender had no prior convictions of any kind) and held that "it cannot fairly be said that he should have foreseen behaviour of this kind if he went off his medication and drank to excess." But for the offender's plea of guilty, his Honour would have imposed a total sentence of 12 years. The offender was sentenced to 10 years imprisonment with a non-parole period of 6 years. 6. Although there are obvious similarities between White and the present case, some differences include that the offender in White had no criminal history and it was found that he could not have been aware of the side effects of going off his medication. That is to be contrasted with this offender's criminal history, the fact that the offending occurred whilst he was on conditional liberty and his awareness of the side effects if he went off his medication. 7. In R v Parker (No 2) [2016] NSWSC 813 the offender, an Aboriginal woman, killed her husband by stabbing him after a day of heavy drinking. The offender was found to have a severe impairment to her executive functioning (in the bottom 1% of the population). The offender had a background of disadvantage (taken into account in accordance with Bugmy) including experiencing physical and sexual abuse as a child and abusive relationships as an adult. She had a record of prior convictions which included personal violence offences. Rothman J found good prospects of rehabilitation, conditional on the offender abstaining from alcohol in the community. His Honour found that the offender expressed "profound remorse" and was unlikely to re-offend. But for the offender's plea of guilty, his Honour would have imposed a sentence of 10 years. 8. Again, although there are some similarities between Parker and the present case, the differences include that in Parker there was a finding of good prospects of rehabilitation, an expression of "profound remorse" and a finding that she was unlikely to re-offend. Conclusion 1. I am satisfied that special circumstances exist [21] that would justify increasing the parole period of the sentence I am to impose. In particular, I am satisfied that the offender will need a lengthy period of supervision in order to ensure that he remains alcohol free and continues to take his medication. 2. It is necessary to give credit for the period the offender has been in custody since his arrest. [22] The Crown noted that the offender has only been held in custody solely in relation to this matter since 27 September 2019; from the date of his arrest on 4 April 2019 until that date he was serving the balance of his ICO. The Crown submitted that the sentence would not be backdated to 4 April 2019 in recognition of the time spent in custody in respect of the assault on his mother. On behalf of the offender it was submitted that I would backdate the sentence to commence on 4 April 2019. I have considered the question of totality and propose to backdate the sentence to 4 June 2019 to allow for some accumulation. 3. As the offender is convicted of a "serious violence offence", it is a requirement that he be warned of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and of its application to the offence. [23] I ask the offender's solicitor to undertake that task on the Court's behalf. 4. Lest there be any doubt as to the discount I have applied on account of the offender's offer to plead guilty to manslaughter in the Local Court, but for that offer, I would have imposed a sentence of 12 years imprisonment. Sentence 1. For the offence of manslaughter I sentence you to imprisonment for 9 years to commence on 4 June 2019 and to expire on 3 June 2028 with a non-parole period of 6 years. You will become eligible for parole on 3 June 2025. ********** Endnotes 1. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]. 2. At [229]-[239]. 3. Section 24, Crimes Act. 4. The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37 at [22] per Gleeson CJ, McHugh, Gummow and Hayne JJ. 5. [2005] NSWCCA 377; (2005) 160 A Crim R 1 at [133]. 6. At [302] of Scott (No 2). 7. [2007] NSWSC 1047 at [35]. 8. At [73]-[118]. 9. At [153]-[197]. 10. [2021] NSWCCA 273 at [33]. 11. (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. 12. At [31]. 13. (2013) 249 CLR 571; [2013] HCA 37. 14. (2011) 244 CLR 120; [2011] HCA 39 at [54]. 15. (1995) 84 A Crim R 67 at 68. 16. At [314]. 17. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (per Gleeson CJ, Gaudron, Hayne and Callinan JJ). 18. Section 25E(1), (3), Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"). 19. Section 22A of the Sentencing Act. 20. The Sentencing Act was amended on 27 May 2019 by the Crimes Legislation Amendment (Victims) Act 2018 (NSW) and the relevant provisions are now in ss 30A-30E of the Sentencing Act. 21. Section 44(2) of the Sentencing Act. 22. Section 47(3) of the Sentencing Act. 23. Section 25C of the Crimes (High Risk Offenders) Act 2006 (NSW). 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: 15 December 2021