Supreme Court New South Wales Medium Neutral Citation: R v Godfrey [2023] NSWSC 1312 Hearing dates: 13 October 2023 Date of orders: 3 November 2023 Decision date: 03 November 2023 Jurisdiction: Common Law Before: Cavanagh J Decision: For the manslaughter of Giuseppe Pagano at Haymarket on 4 April 2021, the offender is sentenced to a term of imprisonment of 4 years and 9 months commencing on 4 April 2021 and expiring on 3 January 2026 with a non-parole period of 2 years and 10 months expiring on 3 February 2024. Catchwords: CRIME – SENTENCE – manslaughter on the basis of self-defence with excessive force – where offender applied choke hold – plea of guilty – difficult and traumatic upbringing – substance use disorder – strong prospects of rehabilitation – remorse demonstrated Legislation Cited: Crimes Act 1900 (NSW), ss 18(1)(b), 421 Crimes (High Risk Offenders) Act 2006 (NSW), s 25C Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(g), 30E Cases Cited: BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Hoskins v R [2021] NSWCCA 169 Paterson v R [2021] NSWCCA 273 R v Bean [2022] NSWSC 783 R v Black (No 2) [2021] NSWSC 77 R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unrep) R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 R v Davis [2021] NSWSC 235 R v Holmes (No 7) [2021] NSWSC 570 R v Isaacs (1997) 41 NSWLR 374 R v MD; R v BM; R v NA; R v JT (2005) 156 A Crim R 372; [2005] NSWCCA 342 R v Millwood [2012] NSWCCA 2 R v Previtera (1997) 94 A Crim R 76 R v Stanley (No 2) [2023] NSWSC 74 Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Sentence Parties: Rex Connor Norman Godfrey Representation: Counsel: M Hay (Rex) M W Smith (Offender) Solicitors: Office of the Director of Public Prosecutions (Rex) Grover Law (Offender) File Number(s): 2021/93122 Publication restriction: None JUDGMENT 1. On 4 April 2021, Connor Godfrey ("the offender") killed Giuseppe ("Joseph") Pagano. The offender killed Mr Pagano by applying a Brazilian jiu-jitsu hold known as the "rear naked choke" to him. As the name suggests, the application of the move involves choking the other person for a period to subdue that person. The offender applied the choke hold to Mr Pagano for an extended period, leading to his death, in circumstances which I will detail in this sentence judgment. 2. Following Mr Pagano's death, the offender was charged with murder. He entered a plea of not guilty to murder. 3. The trial before me and a jury commenced on 22 March 2023. On 11 April 2023, I discharged the jury on application by the offender after the prosecution's expert forensic pathologist indicated an intention to change her evidence based on material not previously seen by her. 4. On 7 July 2023, the offender was rearraigned, this time including a charge that he had unlawfully killed Mr Pagano contrary to s 18(1)(b) of the Crimes Act 1900 (NSW) ("Crimes Act"). The offender entered a plea of guilty to that charge. 5. As such, the offender will be sentenced for the offence of manslaughter. The parties agree that the basis on which he would be sentenced for manslaughter is self-defence with excessive force: s 421 of the Crimes Act. The maximum penalty for manslaughter is imprisonment for 25 years. There is no standard non-parole period. 6. The Crown material on sentence includes: 1. an agreed statement of facts; 2. the offender's criminal and custodial history; 3. trial exhibits; 4. the Victim Impact Statement of Darryn Clifton; 5. the Victim Impact Statement of Annastasija Pagano; and 6. a report of Dr Olav Nielssen, Psychiatrist, dated 7 October 2023. 1. Mr Clifton read out his Victim Impact Statement during the sentencing hearing. Ms Pagano did not feel able to do so and her statement was read by Ms Jeanette Grey of the Victims Support Group. 2. The offender relies on the following material: 1. a letter from the offender dated 4 October 2023; 2. the affidavit of Katerina Pretty sworn 6 October 2023; 3. a letter from Arman Mirzaian dated 5 October 2023; 4. a letter from Eleni Argy dated 4 October 2023; 5. a letter from Susannah Mills dated 26 September 2023; 6. a letter from Tony Wolstenholme dated 10 September 2023; 7. three reports of Dr Sally McSwiggan, Neuropsychologist, dated 11 April 2022, 15 September 2023 and 3 October 2023; 8. two letters from Dr Ricky Tsang, Psychiatrist, dated 12 May 2020 and 29 April 2021; 9. two letters from Dr Lorna Scott, General Practitioner, dated 8 May 2015 and 11 September 2017; 10. a report of Jane MacKinnon, Clinical Psychologist, dated 19 November 2014 and letters from Ms MacKinnon dated 5 and 19 October 2012; 11. a summary of Kids & Co Clinical Psychology file notes dated 26 October 2021; 12. extracts from the Sydney Drug Education and Counselling Centre; 13. a letter from Dr Usman Malik of The Hills Clinic dated 30 May 2018; 14. a letter from Dr Raphael Chan, Psychiatrist, dated 16 January 2015; 15. NSW Corrective Services – Offender Inmate Management System Printout; and 16. NSW Corrective Services – Accredited Program; Participation by Individual Offender. 1. The offender did not give evidence at the sentencing hearing, although it was not suggested by the Crown that I should disregard the content of his letter dated 4 October 2023. Indeed, there is little dispute between the parties about both the objective and subjective features relevant to the exercise of the sentencing discretion. Nor is there any dispute about the sentencing principles which must be applied. 2. For the benefit of those listening, it is necessary for a sentencing Judge to impose a sentence on the offender which reflects the purposes of sentencing, which include the protection of society, the deterrence of the offender and others who might be tempted to offend, retribution and reform. No one factor can be considered in isolation when determining what an appropriate sentence may be in the instinctive sentencing process. I must have regard to both the objective features (such as the nature of the offending) and the offender's subjective circumstances. 3. Manslaughter involves the felonious taking of another person's life. All offending which involves the taking of another person's life must be viewed as serious. [1] Mr Pagano 1. Having regard to the nature of this process – that is, the sentencing of the offender – not as much is known about the victim as there is about the offender. However, I did have the benefit of some Victim Impact Statements from Mr Pagano's family, which were expressed eloquently and with conviction. 2. At the time of his death, Mr Pagano was 43 years of age. He lived alone at Cremorne. 3. Mr Pagano had one daughter, Annastasija (or, Anna). She described her father as a man with a big heart who had a vice, being drug addiction. He had a number of siblings, including Darryn Clifton, who demonstrated the affection that he had for his brother whilst delivering his Victim Impact Statement. 4. Having regard to the Victim Impact Statements, I can only assume that, sadly, like too many members of our society, Mr Pagano did his best to be a good father and brother but it is clear that he struggled to overcome his addiction. The terrible impact of drugs is evident in this case. Victim Impact Statements 1. I have already referred to the Victim Impact Statements. I expressed my sympathy to both Ms Pagano and Mr Clifton at the time of delivery of their statements. Their words were heartfelt, genuine and moving. I again express my sympathy to them and all members of Mr Pagano's family. I will have regard to the Victim Impact Statements, in accordance with the law, as an aspect of the harm done to the community, although I must also have regard to the limitations on the use of such statements in the sentencing exercise. [2] Circumstances of the offending 1. The circumstances of the offending are set out in the statement of agreed facts. It is not necessary that I merely repeat all of the agreed facts, but my summary is based largely on those agreed facts. 2. At the time of the offending, the offender was 20 years of age. The offender and Mr Pagano did not know each other prior to the night of the incident. The offender had received some martial arts training as a teenager, although that ceased around five years prior to the incident. It is agreed that as part of his training in Brazilian jiu-jitsu, the offender was taught the "rear naked choke" hold. This is a basic move which, when applied, can stop the blood supply to the brain, causing a person to lose consciousness. 3. When he was interviewed by the police, the offender described the way in which he applied the hold to Mr Pagano. He was aware that it could go wrong. Indeed, the offender's trainer, Edson Ortiz (who gave evidence at the trial) said that his students were taught the consequences of holding on for too long and that, if acting in self-defence, they should release the hold once the person was rendered unconscious. 4. In the hours before the incident, the offender had been in his unit consuming some alcohol. He then went to a café for dinner, where he also consumed alcohol. He went back to his unit and consumed approximately eight blended scotch whiskeys. He fell asleep for about half an hour before waking up and consumed two more whiskeys. He went to a nightclub to buy some methylenedioxymethamphetamine ("MDMA"), but he was not there for very long. 5. Around the same time, Wayne Rae was on the streets looking to buy some drugs for his personal use. Whilst in the Haymarket area, he was approached by Mr Pagano, who was also out and about looking for drugs. Mr Pagano had told another resident in his unit block at Cremorne that he was going to purchase some crystal methamphetamine ("ice"). 6. The offender, Mr Rae and Mr Pagano were not known to each other. Mr Rae told Mr Pagano that he was also looking to buy some drugs and he might know people who could sell some to them. At around 2:15 am, the offender approached Mr Pagano and Mr Rae, also mentioning that he wanted to buy ice. Mr Rae arranged to meet someone who could sell them some drugs and they all wandered down to Darling Harbour. 7. Mr Pagano gave Mr Rae $300 to assist with the purchase of drugs but the offender said that he did not have any money. Mr Pagano responded that they could go back to the offender's unit after they had bought the drugs to exchange drugs for money. 8. After purchasing a "ball" of methamphetamine and some further "points", the three men headed back towards the offender's unit. When they reached the unit, Mr Rae left, as the offender said he could not have too many people in his unit. Thus, only the offender and Mr Pagano went into the unit. According to the offender (as described to the police), when they arrived, Mr Pagano pulled out cannabis and the pair smoked some "weed" together. 9. At approximately 2:58 am, Mr Rae received a call from Mr Pagano, who said that he was in the offender's bathroom having a "shot" (injecting methamphetamine). Mr Rae could hear the offender talking loudly in the background complaining about something to do with money. Mr Pagano told Mr Rae that the offender was freaking out about him having a shot in his bathroom. Before Mr Pagano hung up, he said to Mr Rae, "it's all good, I'll call you back". 10. It is not known what happened thereafter in the offender's unit. The offender made false statements to the police after the event, and I disregard them. However, closed-circuit television ("CCTV") cameras situated in the hallway outside the unit, including outside the other units on the floor, captured most of what occurred leading up to the death of Mr Pagano. The CCTV footage runs for about nine and a half minutes. It is agreed that there was a violent altercation in the hallway. The offender removed himself from Mr Pagano about five and a half minutes into the footage. 11. It is agreed that, as the men approached the elevator door, Mr Pagano adopted a fighting stance. He grabbed and punched the offender several times around the head and face. The offender's head came into contact with a wall. This resulted in an injury involving blood and significant swelling to his right eye. 12. The offender was unable to protect himself and adopted a stance to avoid a further two blows. As they fell to the ground, the offender got on top of the back of Mr Pagano, who was positioned with his face down. Mr Pagano resisted by kicking his legs out and reaching back with his right arm but the offender was holding him from the back whilst on top of him. 13. Although not everything that happened can be seen on the CCTV footage, to the extent that it can be seen, it is clear that the offender remained on top of Mr Pagano. The offender is shown applying a choke hold, albeit Mr Pagano was still resisting. That continued for a further 50 seconds, at which point the offender and Mr Pagano move off screen entirely for a brief period. Two minutes and 27 seconds from the commencement of the footage, the offender's head and body are visible. He is on top of Mr Pagano applying some form of choke hold around his neck. Mr Pagano appears to briefly lose consciousness, but he then regains consciousness. This is consistent with the offender telling the police that he rendered Mr Pagano unconscious on two separate occasions. It is also consistent with some of the words that the witnesses heard. 14. The offender suffered an injury to his eye as well as a large scratch on his throat and down his chest. This was from Mr Pagano clawing at him as he was being choked. 15. The parties agree that up to this point, the actions of the offender represented a reasonable response to the circumstances as he perceived them. However, the parties also agree that, after Mr Pagano was rendered unconscious for the first time, the ongoing application of the choke hold was not a reasonable response. This is because the offender maintained the choke hold around Mr Pagano's neck despite the fact that Mr Pagano was not moving. 16. Whilst this was going on, a number of residents on the floor were woken up or disturbed and could hear what was happening. Police and paramedics attended. Their attempts to revive Mr Pagano were unsuccessful. 17. Adjoining residents heard Mr Pagano crying out for help, saying, "he's trying to get me", "help, rape" and "call police, call police." The offender was also heard calmly telling the offender to "shut up, be quiet, I'll put you to sleep like I did before". 18. After releasing Mr Pagano from the choke hold, the offender got up. Mr Pagano was not moving. Shortly thereafter, he went through Mr Pagano's pockets and took out $60 cash. He then tried to put Mr Pagano's wallet back into his pocket. He made no attempt to assist him. Prior to the arrival of emergency services personnel, the offender walked into his unit and then walked out again. 19. In the short period after the police attended, the offender made a number of statements about what had occurred inside the unit. I am unable to be satisfied that they are true. 20. He also said that Mr Pagano became unconscious when he had him in a "sleeper hold" for about three seconds. He told police, "I did not wish to kill this man, if that is what the circumstances end up being". 21. When the offender was searched, a knife case was found in his pocket. A Stanley knife was located in another one of his pockets. He said the knife was from his work. Mr Pagano's wallet was also located on the offender. 22. The offender was taken to hospital for treatment. Whilst at the hospital, he started crying, saying that he had tried to give Mr Pagano a chance. He said that he had asked him to stop and claimed that he never had any intention to hurt him, which is the whole point of Brazilian jiu-jitsu: that an individual can subdue their opponent without hurting them. He said it was not his fault that Mr Pagano had a poor cardiovascular base. He then asked (rhetorically), "what do you expect when you take fifty bucks and pull a Stanley knife to someone's throat? He's obviously going to chase you out the door". I place no weight on these statements. The offence 1. The parties agree that the cause of the death of Mr Pagano was the offender's intentional act of keeping him in a choke hold for an extended period of time. It is agreed that the offender, acting with a genuine belief that his actions were necessary to defend himself against Mr Pagano, applied more force than was necessary in the circumstances as he perceived them, appreciating that death was a probable outcome of his actions and that, in those circumstances, he is guilty of manslaughter. 2. It has often been emphasised that the circumstances giving rise to a conviction for manslaughter and degrees of culpability are so varied that no established sentencing tariff can be applied. The seriousness of the offending is determined with reference to the facts of the killing and not the class of manslaughter. [3] 3. Whilst the assessment of the objective seriousness of the offending is part of the discretionary process of determining where within the range of sentences that might be imposed the sentence for this offender might fit, in some circumstances this exercise will not be of much utility. In Paterson v R [2021] NSWCCA 273 at [32]-[33], Beech-Jones CJ at CL (as his Honour then was) (with whom R A Hulme and N Adams JJ agreed) observed: "[32] …in relation to the assessment of objective gravity of an offence, where a standard non-parole period is prescribed under s 54A of the Sentencing Act, it is common for sentencing judges to locate the objective seriousness of an offence on a hypothetical range of seriousness for such offences. However, that is not obligatory for such offences (s 54B(6); Tepania at [110] per Johnson J) and even more so with offences that do not carry standard non-parole periods. [33] There is no standard non-parole period for manslaughter. Given that, and the much repeated statements that, of all crimes, manslaughter is said to 'thro[w] up the greatest variety of circumstances affecting culpability' (R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unrep; see also R v Blake Davis [2021] NSWSC 235 at [138] per N Adams J) it follows that an assessment of where a particular crime of manslaughter is to be placed on some hypothetical range of manslaughters or types of manslaughters is not only not obligatory, it is unlikely to be of much utility. For my part I consider that it is an analysis that is best avoided." 1. The parties did not urge upon me an identification of a point on the range where this offending might sit. It is only necessary to say that the offending must be viewed as serious. 2. The Crown accepts that, although Mr Pagano appeared to originally be running away as he left the apartment, he turned from flight mode to fight mode. He landed several blows to the offender's head and face, causing injury to the offender's face with a cut above his right eye. The Crown accepts that, in responding to these blows, the offender was acting in self-defence. He perceived that it was necessary to defend himself by applying the choke hold. Whilst they were scuffling on the floor, the offender continued to defend himself. However, the act of continuing to apply the choke hold after Mr Pagano was subdued was excessive or unreasonable. 3. As part of the assessment, I am required to determine the degree to which the offender's conduct departed from what would have been a reasonable response to the circumstances as he perceived them: see Smith v R [2015] NSWCCA 193 at [36] and [45] (Simpson JA, with Leeming JA and Hamill J agreeing). Again, in a case such as this, the degree to which the conduct is excessive can vary and the extent to which the response was disproportionate is relevant to the sentence. It is important to observe that I should not make findings of fact adverse to the offender unless I am satisfied of those matters beyond a reasonable doubt. [4] Otherwise, any findings I make may be made on the balance of probabilities. 4. I am unable to draw any conclusion that, at the time when the offender first placed Mr Pagano in the choke hold, he intended to kill him. I am unable to be satisfied that the offender had formed an intention to kill him or even cause grievous bodily harm. The parties agree that I should not make such a finding. 5. Further, as the actions of the offender in applying the choke hold are the same when he was acting lawfully (that is, when he was acting in self-defence) as they were when he was acting unlawfully (when his actions were excessive) and as there was no weapon involved, I accept that the degree to which the offender's actions were excessive or unreasonable was not extreme or high. 6. The sad reality of the circumstances of Mr Pagano's death is that both men were suffering from drug addiction and had taken drugs. In the hours and minutes before the incident, the offender had consumed significant quantities of alcohol and some drugs. Mr Pagano had consumed methamphetamine. Something happened inside the apartment which caused Mr Pagano to leave and be followed by the offender. They became involved in a fight. No weapons were involved. Whatever the offender's state of mind might have been at the time, he continued to apply force to Mr Pagano after he was already subdued. He killed Mr Pagano. It is for that reason that he is in prison and must be sentenced. 7. Whilst the offender relies on expert medical evidence, it is not suggested (and there is no basis to find) that any psychological condition from which the offender was suffering caused him to act in the way that he did. [5] 8. It is necessary to determine the circumstances at the relevant time as the offender perceived them. The circumstances as the offender perceived them at the time were that: 1. he had been involved in a fight with Mr Pagano (who was larger than the offender) in which Mr Pagano had originally got the better of him, landing a number of blows causing injury to his face; 2. the offender perceived that it was necessary to defend himself. He did so by applying the choke hold to subdue Mr Pagano and render him unconscious. Mr Pagano then regained consciousness; and 3. the offender perceived that it was necessary to continue to administer the choke hold, or else there might have been a further assault upon him. However, he applied the choke hold for an excessive period leading to Mr Pagano's death. Subjective circumstances 1. The offender was 20 years old at the time of the offending; he is now 22. The offender has a limited criminal history. He has been convicted for driving under the influence of drugs, larceny and assault occasioning actual bodily harm, for which he received a Community Corrections Order ("CCO") and a community service order of 40 hours. Having regard to his youth and background, his criminal history is of limited relevance. 2. Having said that, the fact that the offender was subject to a CCO at the time of the offending is an aggravating factor to which I must have regard. 3. Upon assessing the offender's subjective circumstances, there are four things that stand out, being: 1. his very difficult and traumatic teenage years; 2. his severe substance use disorder and the impact that had upon him in the years prior to the offending, as well as his unsuccessful attempts to overcome his addiction; 3. his behaviour in custody; and 4. the family and community support he receives. 1. The offender relies on three psychological reports of Dr Sally McSwiggan, which were all compiled following the relevant offending. There are also medical records, including psychological reports, relating to the offender's pre-offending experiences. 2. The offender suffered from violence in his home as a young teenager. The offender reports that his stepfather was physically abusive. Further, he says that his relationship with his father and stepmother was also abusive. 3. It is clear that the offender's behaviour at school deteriorated after primary school. He received warning letters in Year 7 and was suspended in Year 8 because of violence towards another student. There is a letter from his then Assistant Principal dated 17 November 2014 suggesting that the offender had mental health issues and that he should be admitted to Rivendell School to partake in behavioural programs. Further, in Year 8 the offender received care for his mental health problems. A mental health care plan was completed by Kids & Co Clinical Psychology. He was diagnosed as having oppositional defiance disorder ("ODD"). He was referred to a psychiatrist, Dr Raphael Chan. 4. In Year 9, he was absent for 38 full days and 17 part days. Midway through Year 10, he enrolled at Barrenjoey High School and by 9 August 2016, he was recorded as having left Barrenjoey High School without achieving any Year 10 results. At this time the offender was also living away from his home at Taldumande Youth Services. 5. The offender had been consuming drugs and alcohol since the age of 13. In his teenage years he tried (unsuccessfully) to undergo rehabilitation at a number of facilities. He suffered from severe psychological problems, particularly suicidal ideation, which led to his admission to hospital on a number of occasions. At the age of 18, he was prescribed stimulant medication (dexamphetamine) on the basis of a diagnosis of attention deficit disorder ("ADD"). He misused that medication. 6. The Crown obtained a report from Dr Olav Nielssen dated 7 October 2023. This report was based on a review of the documents, rather than an in-person examination of the offender. Dr Nielssen opines that the offender has had a severe form of substance use disorder. He has a documented pattern of behaviour consistent with the presence of unstable mood, self-defeating personality traits and impairment and impulse control. Dr Nielssen did not consider that the offender was likely to have any underlying psychotic illness and did not accept any diagnosis of autism. Dr Nielssen agreed with the conclusions and recommendations of Dr McSwiggan. 7. The last examination by Dr McSwiggan was on 11 September 2023. She had previously evaluated the offender on 1 March 2022, 30 March 2022 and 11 April 2022. Dr McSwiggan opined that the offender has adapted well to custody over the past few years. He has made plans for how to spend his time in custody and upon his release. He remains in protection and has been employed whilst on remand. As she said, he has incurred no infractions and repeatedly expressed to her that he was actively avoiding substances. The custodial records support his assertion that he has been of good behaviour whilst on remand. He has been attending courses and undertaking work in various capacities. 8. The years leading up to the offending can only be described as extremely difficult and traumatic. In the offender's teenage years, he: 1. was suffering from a severe substance use disorder; 2. was subject to violence in the family home prior to leaving home; 3. was experiencing mental health issues or episodes, such that he was taken to hospital on a number of occasions with suicidal ideation; 4. was accepted and entered into a number of rehabilitation facilities in an effort to assist him with his drug addiction; and 5. did not have stable accommodation, sometimes living in a shelter. 1. The offender's background, mental health and significant substance use issues are all intertwined. These are all matters which have the combined effect of reducing his moral culpability and, to a certain extent, mitigating the sentence (see Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; R v Millwood [2012] NSWCCA 2; Hoskins v R [2021] NSWCCA 169). His immaturity at the time of the offending is perhaps best exemplified by the decisions he made in respect of chasing after Mr Pagano and removing his wallet and taking some money. 2. Having said that, the picture which emerges from prison and through character references is somewhat different. The offender now has significant community support. He intends to return home to live with his mother when released. There is no evidence of him consuming drugs in custody, such that his period in custody will be the first time that he has been free of drugs since he was 13. 3. His mother, Katerina Pretty, says that just before he was arrested, the offender was struggling with drugs and alcohol, but had reached out to her and his employer for help. He said he wanted to stop using drugs and attempt rehabilitation. Ms Pretty says that since her son's arrest, she has endeavoured to support him more than she was able to do in the past and will continue to do so. 4. There are other references which speak both to the difficulties that the offender experienced in his teenage years and his determination to overcome them. Eleni Argy, a senior case manager at Taldumande Youth Services, has known the offender for seven years. He was 14 when he entered Taldumande's intensive family support program. She worked with the offender on a weekly basis for two and a half years. She says that he is an intelligent person who has constantly worked on self-improvement. He wishes to pursue further studies and is gifted in electronics. He has been offered a full-time apprenticeship on his release. She says that he has always been respectful to her and advocates for those less fortunate. 5. A family friend, Susannah Mills, offers a place for him to stay on release. His grandfather, Tony Wolstenholme, speaks of the support he and his family have offered over the period since the offending and his knowledge of the offender's use of drugs. He says he will fund a year's worth of psychotherapeutic support to assist with the offender's adjustment on release. A head science teacher also speaks of the offender's character generally and the way in which he has supported her son, who is autistic and has ADHD. 6. I have had regard to all of the references, all of which speak of the offender's dedication to improving himself and their willingness to support him. 7. I am also in receipt of a letter from the offender dated 4 October 2023. He speaks of the changes he has made whilst in custody and his shame at what he has done. He speaks of being 699 days sober and drug-free. He describes himself as a recovered addict and points to the possibilities for the future. He also offers what he describes as a sincere and heartfelt apology to Mr Pagano's family and friends and to those first responders who may be dealing with the repercussions of his actions. He says he is a changed man, particularly as he has freed himself of his addictions. Remorse and rehabilitation 1. Although the offender did not give evidence on the sentencing hearing, the Crown did not suggest that I should disregard the contents of his letter. Indeed, the Crown position is that I would accept what he says. The Crown accepts that the offender has shown remorse, albeit he might have done so in a more fulsome way. On all the evidence I have seen, the offender has done his best since being remanded into custody to change the course of his life. There is really no dispute about that; indeed, there is little dispute between the parties as to his subjective case. 2. I accept that the offender has shown remorse. I also accept that he has excellent prospects of rehabilitation. To a certain extent, they are interconnected. That is clear from everything that has happened since the death of Mr Pagano and all of the statements from family, friends and persons who knew and continue to support the offender. Deterrence 1. Having regard to his reduced moral culpability, general deterrence may play a lesser role on sentence. Similarly, the role of specific deterrence is more limited, having regard to the observations I have made in this sentencing judgment. The offender's youth 1. The offender presents with a strong subjective case. In particular, I have regard to his youth, strong prospects of rehabilitation and changed behaviour whilst in custody. 2. In R v Sharpe (No 7) [2021] NSWSC 379 at [75], Bellew J referred to the significance of youth as follows: "[75] The principles governing the relevance of youth in sentencing were set out by McClellan CJ at CL in KT v R40 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. As was observed by Johnson J in BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159, where the 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. Having said that, this is serious offending and being only 20 years of age does not provide some sort of excuse. Other cases 1. A schedule of comparative cases was provided. As is often said, the circumstances leading to the charge of manslaughter are so varied that so-called comparative cases are often of little assistance. 2. Cases such as R v Bean [2022] NSWSC 783; R v Davis [2021] NSWSC 235; R v Holmes (No 7) [2021] NSWSC 570; R v Stanley (No 2) [2023] NSWSC 74 and R v Black (No 2) [2021] NSWSC 77 have some similarities, although none of those cases have all of the features of this matter – that is: 1. the response was not grossly disproportionate; 2. no weapon was used despite the availability of a weapon; 3. the unlawful conduct was constituted by the persistence of lawful conduct; and 4. the offender has a strong subjective case, including excellent prospects of rehabilitation, remorse and changed behaviour after the offending. Discount for guilty plea 1. The Crown agrees that the offender is entitled to a 25% discount, having regard to his early plea of guilty to manslaughter, which is the offence with which he was ultimately charged. Special circumstances 1. I also accept that the offender has established special circumstances. Due to his severe substance use disorder, he will need a lengthy period on parole under supervision whilst he receives treatment and assistance to remain drug-free. This is referred to by Dr McSwiggan. Again, the Crown accepts that special circumstances exist and the offender will be assisted by a longer period on parole in the community. The sentence 1. The purposes of criminal punishment include the protection of society, deterrence of the offender and others who might be tempted to offend, retribution and reform. Those purposes overlap, and none can be considered in isolation when determining what an appropriate sentence may be in the process of intuitive synthesis, which is the sentencing process: Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14. I have had regard to the seriousness of the offending and the offender's subjective circumstances. 2. The sentence I would have imposed but for the discount on account of the early guilty plea is a term of imprisonment for 6 years and 4 months. Allowing for that discount, I impose a sentence of 4 years and 9 months. Having regard to my finding of special circumstances, I allow a slightly longer period on parole and fix a non-parole period of 2 years and 10 months. 3. The offender has been in custody since 4 April 2021. His sentence will expire on 3 January 2026. He will first become eligible for parole on 3 February 2024. 4. 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 its application to the offence: s 25C. I ask the offender's solicitor to undertake that task on the Court's behalf. ********** Endnotes 1. R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995) at 4 (Gleeson CJ); R v MD; R v BM; R v NA; R v JT (2005) 156 A Crim R 372; [2005] NSWCCA 342. 2. Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(g), 30E; R v Previtera (1997) 94 A Crim R 76. 3. R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [49] per Howie J. 4. R v Isaacs (1997) 41 NSWLR 374 at 377–378; Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [14]. 5. Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. 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: 03 November 2023