New South Wales Supreme Court CITATION : REGINA v DUTHIE [1999] NSWSC 1224 revised - 26/06/2000 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70051/98 HEARING DATE(S) : 27/9/99 (plea taken) 3/12/99 (submissions) JUDGMENT DATE : 15 December 1999 PARTIES : The Crown Trevor Charles Duthie (Accused) JUDGMENT OF : Newman J at 1 COUNSEL : T R Hoyle SC (Crown) P Bodor QC (Accused)) SOLICITORS : Director of Public Prosecutions Legal Aid Commission of NSW CATCHWORDS : DECISION : See paras 58 & 59 THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION NEWMAN J WEDNESDAY, 15 DECEMBER 1999 70051/98 - REGINA v Trevor Charles DUTHIE SENTENCE 1 HIS HONOUR: Trevor Charles Duthie is for sentence today having pleaded guilty to the manslaughter of Jason Moylan. The prisoner was indicted on a charge of murdering Jason Moylan but the Crown has accepted his plea of guilty to manslaughter in full satisfaction of the indictment. In my view for reasons which will emerge, properly so. 2 The basis upon which the Crown accepted the plea of manslaughter was that at the time when the prisoner killed Jason Moylan his responsibility for his actions was diminished by an abnormality of mind. The maximum penalty prescribed by the Crimes Act 1900 for the crime of manslaughter is twenty-five years penal servitude. 3 I turn then to the objective facts of the matter. In determining those facts I have adopted the criminal standard of proof, namely proof beyond reasonable doubt. I should add that there is no disputation as to the circumstances which led to the prisoner killing Jason Moylan. 4 On Saturday, 21 February 1998 Jason Moylan and the prisoner were inmates at the Silverwater Metropolitan Remand Centre. Both were on remand. Jason Moylan was facing a charge of larceny and had been bail refused at Wollongong Local Court on 20 February 1998 on the basis that he was in breach of bail conditions relating to an earlier offence and that he had a history of failing to appear. 5 The prisoner had been remanded to Silverwater for an alleged breach of an apprehended violence order involving his female partner. Both Jason Moylan and the prisoner had past criminal records and had met while previously in gaol. Apparently they had become friendly. 6 Immediately prior to their incarceration both had been ingesting drugs. Both apparently had been in a disturbed state when admitted to Silverwater. It appears that both had been administered the tranquilliser, Valium, on admission. Indeed the autopsy carried out on Jason Moylan found the remanets of a therapeutic dose of Valium and traces of cannabis in his blood. 7 The prisoner in his ERISP claimed he had been administered Valium at about 7.30 pm on 21 February 1998. At an earlier interview at Silverwater with the police, the prisoner stated that he, at the relevant time, was suffering from what he described as speed psychosis which I would interpret as being that he was suffering from amphetamine withdrawal symptoms. 8 On the morning of Saturday, 21 February 1998 Jason Moylan had indicated to prison authorities that he was feeling disturbed which caused the prison authorities to have an Aboriginal Liaison inmate, a Mr Kemp, speak with Jason Moylan - Jason Moylan being an aboriginal. 9 Mr Kemp attempted to comfort Jason Moylan as best he could. He in fact saw him twice during the course of the day. On the second occasion, Mr Kemp observed Jason Moylan in a very bad emotional state and expressed a desire to Mr Kemp that he wished Kemp to "get me out of here". This request, Mr Kemp felt was for Jason Moylan to be moved to an area with other aboriginal inmates. 10 In the event, the authorities placed Jason Moylan with the prisoner whom as I have said, he knew and apparently was on friendly relations, in the same cell. 11 The relevant undisputed facts were then given by Det Snr Const Platten who was in charge of the investigation. They are as follows: 12 At 11.09 pm on Saturday, 21 February 1998 the prisoner rang the "alarm buzzer" from Cell 84 in Darcy POD 2, Silverwater Metropolitan Remand Centre. Correctives officers then answered the bell and the prisoner replied "I have just killed my cell mate." 13 Corrections staff then attended Cell 84 and when they entered the cell the deceased was on the bed beneath a prison sheet. When questioned by Corrections staff as to what happened, the prisoner stated, "He said he wanted to die chief so I fixed it up for him." 14 Flemington Detectives and Crime Scene were then called and attended the scene. Inquiries revealed the prisoner and the deceased were secured in the cell together after dinner at 4.20 pm on 21 February 1998. 15 Flemington detectives immediately questioned the prisoner as to his involvement and he indicated that it was a suicide pact gone wrong. The prisoner stated that he and the deceased wanted to kill themselves by suffocation, but this did not work so the prisoner used a shoe lace to tie up the deceased's arms and legs so as he could not struggle and resist the suffocation. The prisoner then stated that he strangled the deceased around the neck with a shoe lace. This conversation was recorded on an audio tape recorder. 16 Further investigations revealed that the deceased and the prisoner were good friends and had only been placed in a cell together that day. The prisoner and deceased received Valium at approximately 7.30 pm that date. 17 Numerous statements were obtained from Corrections staff and a canvass was conducted of the inmates in POD 2, Darcy cell. Forensic pathologists and Aborigine Death Watch personnel attended the scene and conducted their investigations. 18 Various crime scene investigations revealed a struggle had taken place and that the crime scene had been cleaned up by the prisoner after the death. A number of suicide notes purported to be inscribed by the deceased and the prisoner were located in the cell. Further inquiries revealed that the deceased had been aggressive towards Corrections officers at midday on 21 February 1998 and reports to this effect have been taken into police possession. 19 Arrangements were then made for a Section 29 order to convey the prisoner to Flemington police station after arrest so as detention after arrest legislative requirements could be adhered to. 20 About 7 am on 22 February 1998 the prisoner was taken to Flemington police station and placed in police custody. The prisoner obtained legal advice from his solicitor's representative regarding interviews by ERISP. 21 A short time later Flemington detectives conducted an ERISP with the prisoner. The prisoner stated and reasoned that his actions were voluntary and that he was practicing euthanasia at the request of the deceased. The prisoner stated that they were both affected by drugs and that they both wanted to kill themselves. The prisoner stated that he wanted to kill himself because his wife had set him up for arrest by police. 22 During the ERISP the prisoner became very aggressive towards the interviewing detectives. The interview continued and the prisoner regained his composure. The prisoner was adamant that his actions were voluntary and merely at the request of the deceased. The prisoner could not explain why the deceased was depressed and wanted to die, and stated he did not call for assistance immediately because he did not want to be a dog - prison parlance for persons who assist authority. 23 The prisoner stated that after he tied the hands and legs of the deceased he strangled him by holding a shoe lace around his neck for some minutes watching him struggle and wiggle around before dying. The prisoner stated that he then sat down and prayed with the deceased and then went to sleep for possibly a couple of hours. 24 The prisoner stated that he undid the shoe laces and socks from the body of the deceased after waking up. After removal of laces and socks, the prisoner stated that he then placed a blanket over the deceased. 25 The time of the act of strangulation appears to be 8 pm. The prisoner summonsed the buzzer at 11.09 pm. 26 The autopsy report found that the deceased died as a result of ligature strangulation and not by way of hanging. A number of scratch marks on the neck of the deceased were also found and that this was consistent with some form of struggle. As I have already noted, results reveal a therapeutic does of Valium and a trace of cannabis. 27 Having read the letters left by the deceased in the cell and the notice apparently co-authored by both Jason Moylan and the prisoner I have no doubt that in fact it was the intention of both to suicide. Once the prisoner had killed Jason Moylan he did not have the will to carry out his side of the bargain. 28 I accept that the prisoner believed that what he was carrying out was an act of euthanasia. I hasten to add that euthanasia is not a defence in this State to a crime involving unlawful homicide. 29 I turn then to the subjective matters relating to the prisoner. 30 He is now thirty-five years of age having been born on 11 July 1964. He has a very long criminal record involving many periods in which he was in custody. While most of the entries in his record involve offences of theft, drug offences and serious driving offences they also include offences involving violence including those being armed with intent to commit an indictable offence, assault occasioning actual bodily harm and a conviction for carrying a cutting weapon. 31 The history of his offending goes back over many years and that his offences occurred with alarming regularity. He has in fact spent a good portion of his adult life in custody for the type of offences I have referred to. 32 While trained in mechanics and sign writing he has not been able to hold down a job for any length of time because of his repeated episodes of incarceration. 33 Dr Finlay-Jones, psychiatrist, whose report is before the court, notes that the longest job the prisoner could recall holding down was as a manager of what is colloquially known as a swingers club at Blacktown. 34 As far as his physical health is concerned he has been hepatitis C positive for the past decade. At the time when he was arrested for the breach of the apprehended violence order, marijuana plants were found at his home and in fact he was sentenced to a fixed term of six months on 20 July 1998 as a consequence of that discovery. That last sentence expired on 9 January this year. 35 He has never married and the most serious relationship he had engaged in was that which ultimately led to his partner obtaining the apprehended violence order which in turn led to his incarceration which then led to the commission of the present crime. 36 His father died in 1979 of lung cancer. His relationship with his father was not good. In histories to various psychiatrists, the prisoner has indicated that his father was a violent man. Again and I glean this matter from the psychiatric reports, his relationship between himself and his six siblings is not good. The difficulties stemming from the prisoner's criminal record. There is thus very little in his past history which can be used in mitigation of sentence. 37 More relevant to this issue is the prisoner's psychiatric condition. Before the court are reports from three psychiatrists, Drs Finlay-Jones, Nielssen and Westmore. All are agreed having regard to the histories taken and their clinical observations that the prisoner suffers from schizophrenia and that the condition is chronic. 38 All are agreed that at the relevant time the prisoner was suffering from that abnormality of mind which led them to believe that his responsibility for his actions in killing Jason Moylan was diminished to the requisite extent for the purposes of the law as it then stood at the relevant time. It is for this reason I am of the view that the Crown's acceptance of the plea to manslaughter was entirely proper. 39 Dr Finlay-Jones indeed went so far as to suggest that the prisoner had a total defence under the M'Naughton rules. Drs Nielssen and Westmore did not agree with that latter proposition. 40 Indeed, the absence of any reference to hallucinations, or any other form of delusion, at the relevant time, in the interview he had with police soon after the lethal event or in his histories given to psychiatrists, are, in my view, indicative that the views of Drs Westmore and Nielssen are to be preferred in this regard. 41 The prisoner has been in custody from the time of the lethal event to the present day. He has, during this time, been subjected to treatment for his psychiatric symptoms within the prison hospital system. 42 It is relevant to note that two psychologist who have seen him, Professor Susan Hayes and Mr A Sevitt both place him as having only borderline intelligence. 43 Initially, when he came within the care of the prison hospital system difficulty was experienced in determining whether certain delusional episodes from which he then suffered were related to his past use of amphetamines (which apparently was extensive) or an underlying condition of schizophrenia. 44 It seems that once it was determined that schizophrenia was the preferred diagnosis, appropriate treatment was commenced and in fact still continues. Happily that treatment has been of benefit to the prisoner. Hospital notes tendered are indicative of that improvement. 45 Dr Westmore, who saw him on 25 August 1999 observed: "He is currently under psychiatric care and this obviously should continue. He appears to be receiving appropriate psychiatric treatment and is responding in an anticipated way to that treatment." 46 A report dated 18 November 1999 from Kerrie Kirkwood an alcohol and other drug worker at Long Bay Hospital is in the following terms: "The prisoner has sought the support the Alcohol & Other Drug Service in the Long Bay hospital since December 1998. Since this time he has willingly participated in weekly counselling sessions. The prisoner has a long history of drug use and has taken positive steps to address the issues relating to and resulting from his drug related behaviour. During counselling sessions the prisoner demonstrates motivation and continually presents in an appropriate and polite manner. 47 Accordingly, the prisoner's prospects of rehabilitation are brighter than perhaps one would have anticipated having regard to his past history. 48 The court is thus presented with a prisoner, whom to paraphrase Dr Westmore's report was suffering from an abnormality of mind which was due to paranoid schizophrenia illness, had a drug induced withdrawal state and was of dull intellect overlaid by his mental illness which subsequently impaired his capacity at the time of the homicide. 49 Since the commission of the crime he has made substantial progress under the care being administered to him in the prison hospital. 50 I have read the victim impact statements provided by the victim's mother. That statement underscores the depth of the tragic effect upon her of the death of her son and the court expresses sympathy both to her and to her family on their tragic loss. However, for reasons detailed by Hunt CJ at CL in R v Previtera unreported, 27 May 1997 I cannot take into account the contents of the victim impact statements in coming to my conclusion as to what is the appropriate sentence in this case. 51 The prisoner's need to have on going psychiatric treatment which will properly last for the rest of his life is a compelling reason for finding that this is a case where I should find special circumstances for the purposes of the Sentencing Act and this I do. This means that the proportion between the minimum and additional terms will be varied from the proportion prescribed by the Sentencing Act. 52 In determining sentence in this matter, the combination of the prisoner's borderline intelligence and underlying mental condition (both of which I have found existed at the time of the commission of the offence) are such that general deterrence can but be given little weight in this case. See R v Scognamiglio 1991 56 A Crim R 81-86. 53 I also take into account the prisoner's guilty plea which was given at the first appropriate occasion. That plea is indicative of a manifestation of remorse and contrition on the prisoner's part. I also take into account the pragmatic ground that his plea saves time and expense. See R v Bennetts unreported, Court of Criminal Appeal, 17 June 1993 per Gleeson CJ. 54 This is an extraordinary case. The prisoner's action in killing his victim was not motivated by anger or any of the other matters usually associated with the crime of this nature. It was motivated by a misguided notion that to do so would constitute an act of euthanasia and in circumstances where a suicide pact had been entered into between two drug affected persons, one of whom (the prisoner) had an underlying mental condition. 55 However, the fact remains that a human life has been taken and that while this case is not one which calls for a sentence at the upper range of sentences given for the crime of manslaughter the matter still calls for the imposition of a custodial sentence. 56 While manslaughter is a protean crime See R v Hill 1981 3 A Crim R 397 at 402, the sentence must coincide with the demands of criminal justice, particularly as I have said, here is a case where human life has been deliberately taken. 57 As of today the prisoner has spent fifteen months and twenty-five days in custody following his apprehension for this crime. It seems to me that the most appropriate way of dealing with the matter is for me to nominate what I believe to be an appropriate total sentence divided both as to minimum and additional terms. Having regard to my finding as to special circumstances and fixing the sentence from today, deduct from the minimum term, which otherwise would be set, the time already spent in custody for this crime. 58 In my view the appropriate head sentence is one of penal servitude for eight years consisting of a minimum term of five years plus an additional term of three years dating from today. Making the deduction for the time already served the ultimate sentence will be constructed as follows: 59 A minimum term of three years eight months and five days commencing today, 15 December 1999 and expiring on 20 July 2003 when the prisoner will be eligible for release on parole and an additional term of three years commencing 21 July 2003 and expiring on 20 July 2006.- 13 - THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION NEWMAN J WEDNESDAY, 15 DECEMBER 1999 70051/98 - REGINA v Trevor Charles DUTHIE SENTENCE 1 HIS HONOUR: Trevor Charles Duthie is for sentence today having pleaded guilty to the manslaughter of Jason Moylan. The prisoner was indicted on a charge of murdering Jason Moylan but the Crown has accepted his plea of guilty to manslaughter in full satisfaction of the indictment. In my view for reasons which will emerge, properly so. 2 The basis upon which the Crown accepted the plea of manslaughter was that at the time when the prisoner killed Jason Moylan his responsibility for his actions was diminished by an abnormality of mind. The maximum penalty prescribed by the Crimes Act 1900 for the crime of manslaughter is twenty-five years penal servitude. 3 I turn then to the objective facts of the matter. In determining those facts I have adopted the criminal standard of proof, namely proof beyond reasonable doubt. I should add that there is no disputation as to the circumstances which led to the prisoner killing Jason Moylan. 4 On Saturday, 21 February 1998 Jason Moylan and the prisoner were inmates at the Silverwater Metropolitan Remand Centre. Both were on remand. Jason Moylan was facing a charge of larceny and had been bail refused at Wollongong Local Court on 20 February 1998 on the basis that he was in breach of bail conditions relating to an earlier offence and that he had a history of failing to appear. 5 The prisoner had been remanded to Silverwater for an alleged breach of an apprehended violence order involving his female partner. Both Jason Moylan and the prisoner had past criminal records and had met while previously in gaol. Apparently they had become friendly. 6 Immediately prior to their incarceration both had been ingesting drugs. Both apparently had been in a disturbed state when admitted to Silverwater. It appears that both had been administered the tranquilliser, Valium, on admission. Indeed the autopsy carried out on Jason Moylan found the remanets of a therapeutic dose of Valium and traces of cannabis in his blood. 7 The prisoner in his ERISP claimed he had been administered Valium at about 7.30 pm on 21 February 1998. At an earlier interview at Silverwater with the police, the prisoner stated that he, at the relevant time, was suffering from what he described as speed psychosis which I would interpret as being that he was suffering from amphetamine withdrawal symptoms. 8 On the morning of Saturday, 21 February 1998 Jason Moylan had indicated to prison authorities that he was feeling disturbed which caused the prison authorities to have an Aboriginal Liaison inmate, a Mr Kemp, speak with Jason Moylan - Jason Moylan being an aboriginal. 9 Mr Kemp attempted to comfort Jason Moylan as best he could. He in fact saw him twice during the course of the day. On the second occasion, Mr Kemp observed Jason Moylan in a very bad emotional state and expressed a desire to Mr Kemp that he wished Kemp to "get me out of here". This request, Mr Kemp felt was for Jason Moylan to be moved to an area with other aboriginal inmates. 10 In the event, the authorities placed Jason Moylan with the prisoner whom as I have said, he knew and apparently was on friendly relations, in the same cell. 11 The relevant undisputed facts were then given by Det Snr Const Platten who was in charge of the investigation. They are as follows: 12 At 11.09 pm on Saturday, 21 February 1998 the prisoner rang the "alarm buzzer" from Cell 84 in Darcy POD 2, Silverwater Metropolitan Remand Centre. Correctives officers then answered the bell and the prisoner replied "I have just killed my cell mate." 13 Corrections staff then attended Cell 84 and when they entered the cell the deceased was on the bed beneath a prison sheet. When questioned by Corrections staff as to what happened, the prisoner stated, "He said he wanted to die chief so I fixed it up for him." 14 Flemington Detectives and Crime Scene were then called and attended the scene. Inquiries revealed the prisoner and the deceased were secured in the cell together after dinner at 4.20 pm on 21 February 1998. 15 Flemington detectives immediately questioned the prisoner as to his involvement and he indicated that it was a suicide pact gone wrong. The prisoner stated that he and the deceased wanted to kill themselves by suffocation, but this did not work so the prisoner used a shoe lace to tie up the deceased's arms and legs so as he could not struggle and resist the suffocation. The prisoner then stated that he strangled the deceased around the neck with a shoe lace. This conversation was recorded on an audio tape recorder. 16 Further investigations revealed that the deceased and the prisoner were good friends and had only been placed in a cell together that day. The prisoner and deceased received Valium at approximately 7.30 pm that date. 17 Numerous statements were obtained from Corrections staff and a canvass was conducted of the inmates in POD 2, Darcy cell. Forensic pathologists and Aborigine Death Watch personnel attended the scene and conducted their investigations. 18 Various crime scene investigations revealed a struggle had taken place and that the crime scene had been cleaned up by the prisoner after the death. A number of suicide notes purported to be inscribed by the deceased and the prisoner were located in the cell. Further inquiries revealed that the deceased had been aggressive towards Corrections officers at midday on 21 February 1998 and reports to this effect have been taken into police possession. 19 Arrangements were then made for a Section 29 order to convey the prisoner to Flemington police station after arrest so as detention after arrest legislative requirements could be adhered to. 20 About 7 am on 22 February 1998 the prisoner was taken to Flemington police station and placed in police custody. The prisoner obtained legal advice from his solicitor's representative regarding interviews by ERISP. 21 A short time later Flemington detectives conducted an ERISP with the prisoner. The prisoner stated and reasoned that his actions were voluntary and that he was practicing euthanasia at the request of the deceased. The prisoner stated that they were both affected by drugs and that they both wanted to kill themselves. The prisoner stated that he wanted to kill himself because his wife had set him up for arrest by police. 22 During the ERISP the prisoner became very aggressive towards the interviewing detectives. The interview continued and the prisoner regained his composure. The prisoner was adamant that his actions were voluntary and merely at the request of the deceased. The prisoner could not explain why the deceased was depressed and wanted to die, and stated he did not call for assistance immediately because he did not want to be a dog - prison parlance for persons who assist authority. 23 The prisoner stated that after he tied the hands and legs of the deceased he strangled him by holding a shoe lace around his neck for some minutes watching him struggle and wiggle around before dying. The prisoner stated that he then sat down and prayed with the deceased and then went to sleep for possibly a couple of hours. 24 The prisoner stated that he undid the shoe laces and socks from the body of the deceased after waking up. After removal of laces and socks, the prisoner stated that he then placed a blanket over the deceased. 25 The time of the act of strangulation appears to be 8 pm. The prisoner summonsed the buzzer at 11.09 pm. 26 The autopsy report found that the deceased died as a result of ligature strangulation and not by way of hanging. A number of scratch marks on the neck of the deceased were also found and that this was consistent with some form of struggle. As I have already noted, results reveal a therapeutic does of Valium and a trace of cannabis. 27 Having read the letters left by the deceased in the cell and the notice apparently co-authored by both Jason Moylan and the prisoner I have no doubt that in fact it was the intention of both to suicide. Once the prisoner had killed Jason Moylan he did not have the will to carry out his side of the bargain. 28 I accept that the prisoner believed that what he was carrying out was an act of euthanasia. I hasten to add that euthanasia is not a defence in this State to a crime involving unlawful homicide. 29 I turn then to the subjective matters relating to the prisoner. 30 He is now thirty-five years of age having been born on 11 July 1964. He has a very long criminal record involving many periods in which he was in custody. While most of the entries in his record involve offences of theft, drug offences and serious driving offences they also include offences involving violence including those being armed with intent to commit an indictable offence, assault occasioning actual bodily harm and a conviction for carrying a cutting weapon. 31 The history of his offending goes back over many years and that his offences occurred with alarming regularity. He has in fact spent a good portion of his adult life in custody for the type of offences I have referred to. 32 While trained in mechanics and sign writing he has not been able to hold down a job for any length of time because of his repeated episodes of incarceration. 33 Dr Finlay-Jones, psychiatrist, whose report is before the court, notes that the longest job the prisoner could recall holding down was as a manager of what is colloquially known as a swingers club at Blacktown. 34 As far as his physical health is concerned he has been hepatitis C positive for the past decade. At the time when he was arrested for the breach of the apprehended violence order, marijuana plants were found at his home and in fact he was sentenced to a fixed term of six months on 20 July 1998 as a consequence of that discovery. That last sentence expired on 9 January this year. 35 He has never married and the most serious relationship he had engaged in was that which ultimately led to his partner obtaining the apprehended violence order which in turn led to his incarceration which then led to the commission of the present crime. 36 His father died in 1979 of lung cancer. His relationship with his father was not good. In histories to various psychiatrists, the prisoner has indicated that his father was a violent man. Again and I glean this matter from the psychiatric reports, his relationship between himself and his six siblings is not good. The difficulties stemming from the prisoner's criminal record. There is thus very little in his past history which can be used in mitigation of sentence. 37 More relevant to this issue is the prisoner's psychiatric condition. Before the court are reports from three psychiatrists, Drs Finlay-Jones, Nielssen and Westmore. All are agreed having regard to the histories taken and their clinical observations that the prisoner suffers from schizophrenia and that the condition is chronic. 38 All are agreed that at the relevant time the prisoner was suffering from that abnormality of mind which led them to believe that his responsibility for his actions in killing Jason Moylan was diminished to the requisite extent for the purposes of the law as it then stood at the relevant time. It is for this reason I am of the view that the Crown's acceptance of the plea to manslaughter was entirely proper. 39 Dr Finlay-Jones indeed went so far as to suggest that the prisoner had a total defence under the M'Naughton rules. Drs Nielssen and Westmore did not agree with that latter proposition. 40 Indeed, the absence of any reference to hallucinations, or any other form of delusion, at the relevant time, in the interview he had with police soon after the lethal event or in his histories given to psychiatrists, are, in my view, indicative that the views of Drs Westmore and Nielssen are to be preferred in this regard. 41 The prisoner has been in custody from the time of the lethal event to the present day. He has, during this time, been subjected to treatment for his psychiatric symptoms within the prison hospital system. 42 It is relevant to note that two psychologist who have seen him, Professor Susan Hayes and Mr A Sevitt both place him as having only borderline intelligence. 43 Initially, when he came within the care of the prison hospital system difficulty was experienced in determining whether certain delusional episodes from which he then suffered were related to his past use of amphetamines (which apparently was extensive) or an underlying condition of schizophrenia. 44 It seems that once it was determined that schizophrenia was the preferred diagnosis, appropriate treatment was commenced and in fact still continues. Happily that treatment has been of benefit to the prisoner. Hospital notes tendered are indicative of that improvement. 45 Dr Westmore, who saw him on 25 August 1999 observed: "He is currently under psychiatric care and this obviously should continue. He appears to be receiving appropriate psychiatric treatment and is responding in an anticipated way to that treatment." 46 A report dated 18 November 1999 from Kerrie Kirkwood an alcohol and other drug worker at Long Bay Hospital is in the following terms: "The prisoner has sought the support the Alcohol & Other Drug Service in the Long Bay hospital since December 1998. Since this time he has willingly participated in weekly counselling sessions. The prisoner has a long history of drug use and has taken positive steps to address the issues relating to and resulting from his drug related behaviour. During counselling sessions the prisoner demonstrates motivation and continually presents in an appropriate and polite manner. 47 Accordingly, the prisoner's prospects of rehabilitation are brighter than perhaps one would have anticipated having regard to his past history. 48 The court is thus presented with a prisoner, whom to paraphrase Dr Westmore's report was suffering from an abnormality of mind which was due to paranoid schizophrenia illness, had a drug induced withdrawal state and was of dull intellect overlaid by his mental illness which subsequently impaired his capacity at the time of the homicide. 49 Since the commission of the crime he has made substantial progress under the care being administered to him in the prison hospital. 50 I have read the victim impact statements provided by the victim's mother. That statement underscores the depth of the tragic effect upon her of the death of her son and the court expresses sympathy both to her and to her family on their tragic loss. However, for reasons detailed by Hunt CJ at CL in R v Previtera unreported, 27 May 1997 I cannot take into account the contents of the victim impact statements in coming to my conclusion as to what is the appropriate sentence in this case. 51 The prisoner's need to have on going psychiatric treatment which will properly last for the rest of his life is a compelling reason for finding that this is a case where I should find special circumstances for the purposes of the Sentencing Act and this I do. This means that the proportion between the minimum and additional terms will be varied from the proportion prescribed by the Sentencing Act. 52 In determining sentence in this matter, the combination of the prisoner's borderline intelligence and underlying mental condition (both of which I have found existed at the time of the commission of the offence) are such that general deterrence can but be given little weight in this case. See R v Scognamiglio 1991 56 A Crim R 81-86. 53 I also take into account the prisoner's guilty plea which was given at the first appropriate occasion. That plea is indicative of a manifestation of remorse and contrition on the prisoner's part. I also take into account the pragmatic ground that his plea saves time and expense. See R v Bennetts unreported, Court of Criminal Appeal, 17 June 1993 per Gleeson CJ. 54 This is an extraordinary case. The prisoner's action in killing his victim was not motivated by anger or any of the other matters usually associated with the crime of this nature. It was motivated by a misguided notion that to do so would constitute an act of euthanasia and in circumstances where a suicide pact had been entered into between two drug affected persons, one of whom (the prisoner) had an underlying mental condition. 55 However, the fact remains that a human life has been taken and that while this case is not one which calls for a sentence at the upper range of sentences given for the crime of manslaughter the matter still calls for the imposition of a custodial sentence. 56 While manslaughter is a protean crime See R v Hill 1981 3 A Crim R 397 at 402, the sentence must coincide with the demands of criminal justice, particularly as I have said, here is a case where human life has been deliberately taken. 57 As of today the prisoner has spent fifteen months and twenty-five days in custody following his apprehension for this crime. It seems to me that the most appropriate way of dealing with the matter is for me to nominate what I believe to be an appropriate total sentence divided both as to minimum and additional terms. Having regard to my finding as to special circumstances and fixing the sentence from today, deduct from the minimum term, which otherwise would be set, the time already spent in custody for this crime. 58 In my view the appropriate head sentence is one of penal servitude for eight years consisting of a minimum term of five years plus an additional term of three years dating from today. Making the deduction for the time already served the ultimate sentence will be constructed as follows: 59 A minimum term of three years eight months and five days commencing today, 15 December 1999 and expiring on 19 August 2003 when the prisoner will be eligible for release on parole and an additional term of three years commencing 20 August 2003 and expiring on 19 August 2006. 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