New South Wales Supreme Court CITATION : R v Bellamy [2000] NSWSC 1217 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70028/2000 HEARING DATE(S) : 6 November 2000; 4 December 2000; 11 December 2000 JUDGMENT DATE : 11 December 2000 PARTIES : Regina Bradley Dean Bellamy JUDGMENT OF : Wood CJatCL at 1 COUNSEL : J. Kielly SC A. Webb SOLICITORS : NSW DPP LAC DECISION : 1:Manslaughter: (taking into account 1 matter in form 1 applicable to that count) Sentenced to imprisonment for 5 years from 5 August 1999, to expire on 4 August 2004.; 2. Armed Robbery sentenced to imprisonment for 5 years from 5 August 2002. To be served partially concurrently and partially cumulatively on sentence for manslaughter; to expire 4 August 2007; 3. Aggravated break enter and steal (taking into account 3 matters on form 1 applicable to this count) sentenced to imprisonment for 4 years from 5 August 2005, to expire on 4 August 2009. To be served partially concurrently and partially cumulatively upon sentence for offence of armed robbery.; The total head sentence is accordingly a period of imprisonment for 10 years, although as a whole it equates to a sentence of 14 years imprisonment.; I specify a total non parole period of 7 and a half years from 5 August 1999. ; Earliest date eligible for release on parole is 5 February 2007.; The total non parole period is made up of non parole periods in respect of the first sentence of 3 years commencing from 5/8/99 and expiring on 4/8/2002; in respect of the second sentence of 3 years commencing on 5/8/2002 and expiring on 4/8/2005; and in respect of the third sentence of 1 year 6 months commencing on 5/8/2005 and expiring on 4/2/2007. THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION WOOD CJ AT CL MONDAY 11 DECEMBER 2000 70028/00 - REGINA v BRADLEY DEAN BELLAMY SENTENCE 1 HIS HONOUR: The prisoner was indicted on 6 November 2000 with the manslaughter of Harry Jansons. To that count, which carries a maximum sentence of imprisonment for 25 years (section 24 Crimes Act) he pleaded guilty. He also pleaded guilty to a second count of armed robbery, an offence which carries a maximum sentence of imprisonment for 20 years (section 97(1) Crimes Act). That offence occurred on 14 July 1999, the same date as the manslaughter. The victim in respect of this count was Karline Jansons, the mother of Harry Jansons. FACTS - INDICTMENT 1 2 The Crown case in relation to the offence of manslaughter was largely based upon the prisoner's own admissions. It was to the following effect: The deceased, a 57 year old pensioner, met the prisoner at about 6pm in John Street, Cabramatta, somewhere in the vicinity of the railway station. The prisoner had gone to that area for the purpose of purchasing heroin. By the time that the two men spoke in the street, the deceased was very drunk, with a blood alcohol concentration tested postmortem in the order of 0.281 grams of alcohol per 100 mls of blood. The deceased invited the prisoner home. The invitation was accepted by the prisoner in the belief that he would be able to get some more drugs from him. 3 The deceased lived with his 88 year old mother in 3 Hill Street. It was to those premises, and specifically to the deceased's bedroom, that the two men went. Once there, the deceased offered the prisoner a number of Normison tablets which he then ingested. He felt dizzy and fell asleep on the deceased's bed. When he awoke a short time later, he saw the deceased standing up with his pants and underpants down, a pornographic movie playing in the background and the deceased masturbating. The prisoner was somewhat alarmed and said that he was leaving. 4 The deceased moved towards him with his hands by his side. The prisoner punched him in the nose causing him to fall to the ground. When the deceased tried to stand up and began to curse him, the prisoner punched him to the head again and then began to kick him in the throat. At some stage the deceased tried to grab him by his shirt. Some grappling ensued and he continued to hit and kick the deceased in order to make good an escape. 5 After a number of blows, including, on the prisoner's account, three or four kicks, the deceased remained on the floor. The prisoner checked his pulse and found that it was non-existent. He pulled the deceased's pants up and placed the body face down on the bed. 6 The prisoner then moved from the bedroom where these events occurred to that of Mrs Jansons. While there, he placed a white T-shirt over her head, a bra around her neck and held a 27 cm bladed knife to her throat. He demanded jewellery and money from her and threatened at least twice to kill her or her son. He stole two gold wedding rings from her left hand, $80 to $90 in cash, and another ring with an amethyst stone. The proceeds of this robbery were used to purchase heroin. These further acts constituted the act of armed robbery preferred in the first indictment. 7 Before leaving the premises, the prisoner ransacked the bedroom of both the deceased and Mrs Jansons, as well as other rooms in the house, and he cut the phone lines to the premises. 8 Having departed the scene he went to the home of a former girlfriend to whom he said "some poofter tried to put the hard word on me so I hit him and left". He also said that he had met "the guy in Cabravale Park and we went back to his house and the guy gave me some gear". The next day he pointed out to this friend the premises where the assault had taken place. 9 Camera footage from the shopfront police station CCTV in John Street showed the deceased with another man in the late afternoon of 14 July. The pictures recovered were somewhat indistinct, although the prisoner was apparently identifiable to his former girlfriend. When interviewed by police subsequently, the prisoner admitted that it was he who appeared in those pictures; similarly, he admitted that a T-shirt found at the premises was his. 10 The prisoner stated in the interview that he had panicked after waking up and seeing the deceased standing across from him with his pants down, masturbating, and then moving towards him. The kicking, he said, had been aimed at the chest of the deceased but inadvertently had struck him in the throat. He had not intended to kill that man. He said that he had cut the phone line and robbed the deceased's mother and had also ransacked the premises to make it look as though there had been a home invasion. 11 At postmortem a large number of bruises and abrasions, approximately forty in number, were found to the head, the neck, the shoulders, the upper limbs, the back, buttocks and legs of the deceased. Closer dissection of the neck revealed bruising of the strap muscles, fracture of the thyroid cartilage and hyoid bone, as well as bruising to the carotid arteries. It is evident from the number and nature of the injuries that the deceased was subjected to significant blunt force trauma. However, one cannot exclude the possibility that some of the apparent injuries may have been occasioned in an incident between the deceased and the police, some days earlier, when he had resisted arrest after offering abuse to them, or the possibility that some of them occurred when he fell to the ground more than once while being hit or kicked by the prisoner. 12 Although Dr Little initially thought that death had been due to strangulation and asphyxia, when informed of the prisoner's admissions of having kicked the deceased in the neck, she said that the condition of asphyxia that she observed could also have been consistent with such blows. Dr Byron Collins came to a similar conclusion when reviewing the autopsy report and photographs. He offered the view that the neck injuries, that could possibly have been indicative of strangulation, could also have been attributable to blunt force trauma when the deceased hit the floor or to pressure applied on his shirt collar during the grappling which the prisoner described. 13 For sentencing purposes, I find that the deceased's death was due to the kicks that unintentionally struck the deceased in the neck. I discard the possible thesis of manual strangulation which would have carried with it a specific intent to cause at least grievous bodily harm. 14 The plea to the count of manslaughter is accepted on the basis that the prisoner lacked the intent required for murder but was guilty of the lesser offence because his response to the situation which developed amounted to unlawful and dangerous acts on his part. The offence having been accepted by the Crown as one of involuntary manslaughter, provocation did not arise as a "defence". Nevertheless, it remains proper to have regard to the events which preceded the prisoner's response as relevant to an assessment of his objective criminality. 15 In that regard, I accept that having been raped in gaol on a previous occasion the prisoner had panicked when faced with a possible act of homosexual intercourse, forced upon him without his consent, and also with what seemed likely to be resistance by the deceased to his attempts to leave the bedroom. 16 The effect of the drugs he had taken that day, it may be accepted, played some part, although not a large part, in his offending. It was his account that he had used a shot of heroin and two Rohypnol tablets earlier that day, in addition to the six Normison capsules which he had taken immediately before the offence. Dr Moynham expected that the effects of the heroin and Rohypnol would have left the prisoner's system by the time of the relevant events. The Normison, he said, would normally diminish inhibitions but should not enhance aggression. It can give rise to impairment of coordination, balance and spatial orientation. While the effects of drug ingestion may help to explain the prisoner's response they do not excuse it since it was his decision to abuse drugs. 17 On any view, the objective seriousness of the prisoner's offence of manslaughter was serious. I would reject the submission advanced by his counsel that it fell towards the lower level of criminality for an offence of involuntary manslaughter; rather, it seems to me to fall within the mid-range of objective seriousness for that offence, involving as it did a significantly excessive response to the situation in which the prisoner found himself, particularly having regard to the differences between the ages of the prisoner and the deceased. 18 The offence of armed robbery I find to have been particularly serious. To expose a woman of elderly years, whose son has just been killed by the offender, to the terrifying situation which unfolded in her bedroom, this night, places the case in the upper level of offences of armed robbery occurring within a victim's home. Although not a home invasion as such, it carried much of the features of such offence. Although the prisoner may have been placed somewhat off balance by reason of the earlier events, and may not have been thinking terribly clearly, this did not excuse or minimise the seriousness of the further offence. 19 On 20 July 1999, that is about a week after these events, the prisoner returned to the home of the Jansons where he broke in and stole a number of items, including six video recorders which he later sold in order to purchase more heroin. This offence of break, enter and steal under section 112(1) of the Crimes Act carries a maximum penalty of imprisonment for 14 years. It is to be taken into account on a Form 1 when sentencing the prisoner for the manslaughter count. 20 The prisoner claimed that this subsequent offence had also been carried out to suggest that there had been a home invasion. Quite why he saw this as providing any justification for the infliction of further harm to Mrs Jansons is quite unclear. It was, in my view, a matter of some cruelty on his part to reoffend in relation to her. FACTS - INDICTMENT 2 21 Apart from the offences of which the prisoner acknowledged his guilt, contained in the first indictment and in the Form 1 that were presented on 6 November 2000, the prisoner has also pleaded guilty to another count of break, enter and steal in an indictment presented to this court on 4 December. He has also acknowledged his guilt in relation to three other offences included in a Form 1. They are to be taken into account when sentencing him for the break, enter and steal offence contained in the second indictment. 22 The offence charged on this indictment was one of aggravated break and enter a dwelling house and commit a serious indictable offence, the aggravation being the infliction of corporal violence to the victim. The maximum penalty for that offence is imprisonment for 20 years (section 112(2) Crimes Act 1900). 23 The offences taken into account in the Form 1 include two counts of break, enter and steal contrary to section 112(1) of the Crimes Act and one count of attempt break and enter with intent to commit a serious indictable offence of stealing, an offence which under section 113 of the Crimes Act attracts a maximum penalty of imprisonment for ten years. 24 The facts in relation to these further matters may be briefly mentioned. The offence of aggravated break, enter and steal was committed when at about 2.45am on 24 July 1999 the prisoner entered the home of the victim Glenda Fetch at 20 Carlton Street, Granville. He kicked her bedroom door off its hinges and entered her room. She was lying on her bed at the time. He said to her "Don't scream out or make a noise or I will kill you". She was a 62 year old female. 25 The prisoner placed a pillow case or cover over her head and asked for her money. He rummaged through her room and took from it $360 in cash. He asked for her wedding ring but she could not remove it from her finger. He threatened to kill her if she called the police. At one stage he also mentioned the possibility of killing her cats. He left his fingerprint on a lounge room window. A carving knife was found lying on the floor near the back door, although there was no suggestion that it was presented at the victim. 26 The first break, enter and steal offence on the Form 1 was committed three days earlier, on 21 July 1999, and involved a forced entry into premises at 24 Jamieson Street, Granville. On this occasion the prisoner gained entry by a rear door during daylight hours. Once inside he stole an amount of jewellery, including a gold engagement ring, a jade Arab ring, a silver sapphire ring, a silver necklace, a Celtic gold cross and a gold opal ring. Again, he left his fingerprints behind. 27 The second such offence occurred on the same day in the adjoining premises at 22 Jamieson Street. On this occasion the prisoner stole some computer equipment and some lesser items. 28 The third matter was the offence that led to his arrest on 5 August 1999. The prisoner was, that afternoon, sighted by neighbours in the yard of premises at 49 Onslow Street, Granville. He was detained and police were called. When the property was inspected, it was discovered that a window frame and a security light had been tampered with. A screwdriver was found nearby. 29 To all of these further offences, the prisoner pleaded guilty in the Local Court. He was initially committed to the District Court for sentence but when his plea of guilty to manslaughter was accepted, the indictment and Form 1 were presented in this court so that the entirety of his known outstanding criminality could be dealt with on a totality basis. 30 It was while he was held in custody, following his arrest on 5 August, that he disclosed to police, in the circumstances later mentioned, his complicity in relation to the offences directed at Mr and Mrs Jansons. 31 Again, each of these offences in the second indictment and a Form 1 was objectively serious, both individually and in their totality. Particularly so was the offence of aggravated break, enter and steal, being the count charged in the indictment. It bore some similarity to the circumstances involving Mrs Jansons, so far as a 62 year old lady was threatened in her bedroom at night and had her cash stolen. SUBJECTIVE CIRCUMSTANCES BACKGROUND 32 The prisoner was born on 1 February 1970 and is now 30 years of age. He is a single man with a very lengthy history of criminality and of drug addiction. He had regular appearances in the Children's Courts across the State between August 1983 and November 1986 for various offences of malicious injury, break, enter and steal, cruelty to an animal, stealing, attempt to steal, receiving, stealing motor vehicle, assault, assault occasioning actual bodily harm, assault police and malicious wounding, as well as for absconding and escape from lawful custody. 33 These offences were initially dealt with by probation, subject to supervision, until the inevitable committal to an institution in March 1984 and later to control orders. In order to curb what appeared to have been a period of serious unlawfulness while a juvenile, attempts were made unsuccessfully from time to time to break that cycle by suspending the committals conditionally upon him entering into recognisances to be of good behaviour, and to perform community service, and by release on probation subject to similar conditions to be of good behaviour and to accept the supervision of the Young Offenders Support Team. During various periods of committal to institutions, the prisoner responded by escaping or absconding, acquiring seven such entries in his juvenile record. 34 In August 1988 he commenced to appear in adult courts and thereafter obtained multiple convictions for goods in custody, possess unlicensed firearm, common assault, assault police, resist arrest, malicious damage, possess prohibited drug, break, enter and steal, robbery with a striking, assault occasioning actual bodily harm, break and enter with intent, being carried in conveyance taken without consent, break and enter a building and commit a felony and escape. 35 The history between August 1988 and the date of the present offences is similarly one of almost total disregard for the law, resulting in his imprisonment for the greater proportion of his adult life to date, with only one interruption of any length, between late 1995 and the end of 1996. 36 The present offences occurred while the prisoner was on parole for six counts of break and enter a building and commit felony, which attracted a minimum term of fifteen months expiring on 14 May 1999 and an additional term of five months. That of itself is an aggravating circumstance in relation to sentencing for the present offences (see Daridis NSW CCA 18 December 1986; Vranic NSW CCA 7 May 1991; and Tran 1999 NSW CCA 109). 37 The prisoner has been in continuous custody since 6 August 1999 following his arrest on the matters taken up in the second indictment. It is from that date that I propose to backdate the sentences. 38 The presentence report notes that although the prisoner has been under parole service supervision on three occasions, he had successfully completed only one of those periods. Otherwise, parole has been revoked and attempts to perform community service terminated because of further arrests and inappropriate behaviour. The report notes that the prisoner "did not respond well overall in his contact with" the service. 39 It also notes that his family background and upbringing were satisfactory, having been raised in circumstances that were modest but comfortable and in an environment where he had a good relationship with his parents and siblings. 40 He was reported to have been a hyperactive and difficult child from a young age with psychological problems being evident, as his antecedents can powerfully attest. He was said to have displayed an anti-authoritarian attitude, and to have been manipulative, impetuous and irresponsible in his behaviour. His parents tried to secure assistance from behavioural units and otherwise, without success, it would seem, because of his refusal to disclose his feelings or to discuss the personal issues that arose, claiming that they were solely his business. 41 He left school at the age of fourteen years, and the family home at the age of fifteen years. Since then he has lived with a de facto partner for a time and with friends for the remainder, most of whom were drug users or people of low repute. He has one son aged nine from a previous de facto relationship which ceased some three years ago. The breakdown of that relationship he attributed to his drug abuse and unstable lifestyle. 42 He formed another short-term relationship in 1999 with a known drug addict who has since died of a drug overdose. 43 The prisoner's literary skills are said to be satisfactory. Although interrupted by regular periods of imprisonment, he claims to have worked during the sixteen years since he left school for short periods in unskilled labouring and factory work. He has been on a disability pension since 1995, apparently due to some problems with his shoulder and neck. 44 His history of drug and alcohol abuse is long-standing having begun in his early teens. It has impacted disastrously upon his lifestyle, interrupting personal relationships and employment to a point where he has fallen into a sad cycle of substance abuse, criminal activity and imprisonment. He uses heroin as well cannabis and Benzodiazepines and he estimates that his habit at the time of the current offences was costing him in the order of $1,100 per day. 45 He has never sought professional assistance in relation to these problem. In fact he has positively resisted attempts by the authorities to involve him in drug rehabilitation or anger management, the latter being an area in which he obviously needs assistance, having regard to his history of responding with angry outbursts when he does not get his own way. Similarly he has resisted psychological counselling when that has been offered, although he has been treated with antidepressant medication while in custody. This is said to stabilise his mood. 46 Significantly, in relation to his subjective circumstances, the author of a presentence report observed in relation to him: "His offending behaviour is extensive and serious. He does not appear to consider the consequences of his actions and he does not appear to learn from past mistakes or experiences as indicated by the cycle of substance abuse, offending and imprisonment. Mr Bellamy acknowledged that there had been a deterioration in his lifestyle in recent years and that he had failed to take up opportunities to seek assistance for his drug and alcohol and related lifestyle problems. The offender appears to accept some responsibility for his actions with regard to the offending. There is no indication however that he has any desire to change his well entrenched unstable and irresponsible lifestyle which has brought him into conflict with the law for much of his life; he is in some respects institutionalised." 47 In relation to future supervision, the report concluded: "The offender may benefit from a period of supervision by this Service at the appropriate time. Case management would focus on assisting Mr Bellamy with his drug and alcohol problems including consideration of a long term residential drug rehabilitation programme. Notwithstanding the offender's past reluctance to accept intervention it is felt that Mr Bellamy would also benefit from formal assistance with regard to anger management and psychological counselling." MENTAL STATE AND REHABILITATION PROSPECTS 48 Some other material of an expert nature was placed before the court in relation to the prisoner's mental state, and in relation to his prospects of rehabilitation. 49 Dr Roslyn Wilcox, a forensic psychologist, examined him on 20 May 2000 and again on 20 November 2000. She obtained a history broadly consistent with that recorded in the presentence report, but also recorded various instances of aggression, as well as a failed attempt by his parents when they sent him to Redback School to overcome his truanting and disruptive behaviour. 50 She also noted that he had been sexually assaulted at Parramatta Correctional Centre at the age of 17 and had been angry and traumatised by that experience. He claimed to have suppressed the memory of it by escalating his use of drugs. 51 The history he gave to Dr Wilcox disclosed the use of drugs on the day of the killing, including two shots of heroin, four Rohypnol tablets and a few glasses of bourbon before he was given the Normison tablets by the deceased. He claimed to have substantially increased his drug use after his release from prison on 25 May 1999. 52 Dr Wilcox found no evidence of clinical depression or of any psychotic features. She thought that any symptoms of post traumatic stress disorder attributable to the earlier sexual assault would have abated several years ago. His reported difficulty with attention, and similar matters, may have been reflective of an attention deficit hyperactivity disorder. She also thought it highly probable that he had suffered from a conduct disorder of childhood that had progressed to the development of some anti-social personality traits. 53 The specific offence of manslaughter she thought may have had some connection with his earlier experience of being sexually assaulted, so far as it increased his level of fear and caused him to act in the way that he did to prevent a recurrence of such an event. His judgment she thought may have been impaired, making it more difficult for him to control his behaviour. 54 In her later report, she noted the prisoner's claim that he had been on methadone during his last period of custody before the present offences, but had rebelled and returned to heroin abuse when he was taken off the programme for giving a dose of methadone away. He expressed to her a wish to go back on methadone because he had been using heroin in custody. He said that he had not been involved in any form of drug or alcohol counselling because he was unimpressed and dismissive of the counsellors. 55 During the interview for this later report, the prisoner disclosed that his parents had separated for a time and that he had discovered, only later in his life, that the person he regarded as his father was not in fact his natural father. Although he did not think that learning of this had caused any major disruption in his life, he understood that his mother thought otherwise. 56 Dr Wilcox thought him to have become quite institutionalised, and likely to have difficulty coping with life outside of custody. She also thought that his adult antisocial behaviour and his use of drugs were closely connected. Although he gave an outward impression of not caring about anything and regarding life as a joke, she thought that this was in fact a facade and a defence which he had developed. 57 She also thought it unlikely that he would be motivated to seek any form of assistance observing "he has no respect for authority figures or professionals and at this stage it is probable that he would have difficulty developing a trusting relationship with anyone who tries to assist him." 58 Catherine Barrier, a clinical psychologist, also provided a report following interview and testing. She received a history that was again broadly consistent with that given in the presentence report and in Dr Wilcox's reports. Psychological testing, she said, revealed the prisoner's IQ to be in the sound average range. A moderate level of pathology, characteristic of a personality disorder with prominent borderline and paranoid features was indicated. Some aspects of the test scores suggested to her that the prisoner had a high level of anxiety and dysphoria consistent with guilt, apprehension, and psychological problems in response to the killing. They were also consistent with him having sustained a post traumatic stress disorder, as well as with him having had attention deficit hyperactivity. 59 The acquisition of skills in drug relapse prevention was considered beneficial as was therapeutic intervention to address his personality problems. However, Miss Barrier added "given his particular personality characteristics, he is likely to deny imperfections and resist change; hence techniques that are non-directive or self directive are likely to provide the most positive outcomes." PLEA OF GUILTY AND ASSISTANCE 60 In the prisoner's favour are the circumstances relating to his conduct following his arrest. As I have observed, it was after he was taken into custody, in relation to the last offence, that he requested to speak to detectives investigating the killing of Mr Jansons. He had indicated to his mother an intention of speaking to police about another matter, in advance of this occurring, although he did not specify what that was. 61 An appointment with police was arranged through an independent solicitor. It then occurred on 16 August. During the interview that followed, the prisoner explained that he had decided to speak to police because he had not been able to sleep thinking about what had happened and because he was very sorry for it. That was in relation to the manslaughter of Mr Jansons. 62 The interview into which he entered appears to have been a full and frank admission of his involvement in the offence of manslaughter and in relation to the other matters. Moreover, he cooperated, as I previously noted, to the extent of identifying himself and the deceased in the CCTV stills shown to him, as well as acknowledging that the T-shirt found in the premises was his. 63 The assistance which he offered in this regard should be assessed as valuable. Although he had earlier been spoken to by police in the street, and admitted that he felt that he was under suspicion, the investigation into Mr Jansons' death and the armed robbery had in fact not been progressing particularly well for police. It may well be that he would have eventually been identified as the person responsible but that, to a degree, may have depended on the cooperation of his former girlfriend who had not told the truth to police, when asked if she knew the man in the CCTV. In these circumstances the prisoner is entitled to the benefit which is accorded to those who assist police in current investigations thereby leading to their own arrest (See Ellis (1986) 6 NSWLR 60; Dodd (1991) 57 A Crim R 349). 64 Moreover, the prisoner is entitled to recognition of the fact that, by adhering to his plea of guilty in relation to the armed robbery offence, he removed from Mrs Jansons the traumatising ordeal of giving evidence. The effects of the crime upon her have been particularly severe, as was noted by Dr Wayne Reed, to the point where he thought that she may not have been able to give evidence had the matter gone to trial. This report was not placed into evidence by way of a victim impact statement, and I do not propose to regard it as such. Its purpose was confined to demonstrating the utilitarian value of the plea. A similar consideration applies in relation to Mrs Fetch, who was also relieved of the distress of having to recount her experience to a jury. 65 Additionally, it was established that the Crown may have had some difficulty in proving the second break, enter and steal offence on the Form 1 for the second indictment, since no fingerprint, or any other forensic evidence, had been found linking the prisoner to that offence. Not withstanding that fact and the offer of a no bill, the prisoner elected to allow it to be taken into account for sentencing purposes. 66 In these circumstances, he is in my view, entitled to a reduction of 20 percent for the utilitarian value of the pleas of guilty in accordance with the guideline judgment in Thomson & Ors 2000 NSW CCA 309. The only reason why I consider him disentitled to the maximum 25 percent discount is the enormity of the conduct involved in all of the matters before the court. 67 That is a circumstance which, it has been recognised, may require the utilitarian principle to yield to considerations of greater weight, including the need to ensure, in accordance with Veen (No 2) (1988) 164 CLR 465, Rushby (1977) 1 NSWLR 594 and Dodd that a reasonable proportion remains, between the sentence and the circumstances of the crime for which the offender stands for sentence (see also Thompson at para 58 and Kalache 2000 NSW CCA 2 at paragraph 37). REMORSE AND CONTRITION 68 I have already noted the remorse that was disclosed by the confession to police, and that was mentioned by those who have interviewed the prisoner for sentencing purposes in relation to the offence of manslaughter. I accept its existence and I accept the prisoner's acknowledgment of the criminality of his actions in relation to Mr Jansons, insofar as he recognises that he went way to far. 69 The extent of that remorse is however qualified in two respects. First, it seems to be largely directed to the killing, and to be less than obvious in relation to the other offences, being offences of a kind which have regularly appeared on his record. 70 Secondly, the confession for the offence of manslaughter appears to have been principally motivated by the belief that, having come forward and wiped clean the slate, the prisoner could then free his mind of the troubled feelings he had and get on with his life. 71 So far as I can see, he seems still to lack any real contrition for the ongoing criminality reflected in the other offences, or indeed any understanding of their likely impact upon his victims. To that extent, while remorse and contrition are present, I am not persuaded they rank very highly in his mind in relation to the various offences before the court. 72 There are no other favourable subjective circumstances other than those I have mentioned that would operate in mitigation of the sentence that needs to be imposed in this case. SENTENCING PRINCIPLES IN RELATION TO THE INDIVIDUAL OFFENCES MANSLAUGHTER 73 The offence of manslaughter is regarded as a particularly serious crime, since it involves the unlawful taking of a human life, the protection of which is a primary objective of the system of criminal justice (see MacDonald NSWCCA 12 December 1995 and Blacklidge NSWCCA 12 December 1995). The maximum penalty of 25 years indicates that to be so. 74 However, it is an offence characterised by a wide range of sentencing outcomes, which is greater than that for virtually every other form of crime. As Kirby P explained in Troja NSW CCA 16 July 1991, that is due to the circumstance that it embraces a great variety of activities extending from the morally almost innocent to the seriously culpable. 75 In some instances the offence would have constituted murder, save for provocation or save for substantial impairment by abnormality of mind (formerly diminished responsibility). In other cases it arises from culpably negligent acts or, as in the present case, unlawful and dangerous acts where the perpetrator did not have in mind occasioning any serious harm to the victim. For those reasons, the sentencing statistics maintained by the Judicial Commission for this offence are of limited value (Morabito (1992) 62 A Crim R 82 at 86). 76 A reference to decided cases involving involuntary manslaughter is also of limited value. Those having some similarity with the present offence so far as the objective facts are concerned, which I have considered, include the following decisions: Kane Graham (2000) NSW SC 1033 and PAA Simpson J, 10 February 1999. However, there are significant differences between the offenders, in relation to their subjective circumstances and also in relation to the totality of criminality involved. 77 Other cases of a factual similarity, but involving manslaughter found either in circumstances of provocation, or diminished responsibility include Thompson Albert Dunn, Ireland J, 21 September 1995; Garry Diamond, Simpson J, 15 April 1994; Lester James Jacky, Campbell J, 10 June 1993; and Malcolm Thomas Green (1999) NSW CCA 97. 78 The proper starting point, when sentencing for manslaughter, in view of the differences in circumstances that constitute the offence, were conveniently noted by Gleeson CJ in Blacklidge when noting "It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability. At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. ( R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.)" 79 It is with that observation in mind that I propose to sentence the prisoner for the first count in the first indictment. ARMED ROBBERY 80 In the guideline judgment of the Court of Criminal Appeal in Henry (1999) 46 NSWLR 346 it was held that: "(1) Where the offence of armed robbery is characterised by the following features: (i) young offender with no or little criminal history; (ii) weapon like a knife capable of killing or inflicting serious injury; (iii) limited degree of planning; (iv) limited, if any, actual violence but a real threat thereof; (v) victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) small amount taken; (vii) plea of guilty, the significance of which is limited by a strong Crown case; the sentence imposed should fall within the range of four to five years imprisonment. A range and not a fixed starting point is appropriate given that some of the features are inherently variable and the identified factors will not comprise all the factors relevant to the sentencing process. (380 [162]-[170]; 387 [213]; 398 [278]; 399 [279]; 410 [334]) (2) Aggravating and mitigating factors will justify a sentence above or below the range. (381 [169]) (3) Drug addiction is a circumstance relevant to the sentencing exercise but it is not of itself a mitigating factor. (382 [174]; 384 [193], [194]; 398 [276]." 81 A court should: "regard the seriousness of the offence as enhanced, and reflect that in the quantum of sentence if any of the following factors are present. If more than one factor is satisfied, there is an accumulative effect upon the seriousness of the offence. (i) The offence is committed whilst the offender is at conditional liberty, on bail or parole. (ii) The offence is the result of professional planning, organisation and execution. (iii) The offender has a prior record particularly for like offences. (iv) The offence is committed at premises of the elderly, the sick or disabled. (v) The offence is accompanied by vandalism and by any other significant damage to property. (vi) The multiplicity of offence, in which case regard must be had to the criminality involved in each offence: Pearce v The Queen (1998) 72 ALJR 1416. (vii) The offence is committed in a series of repeat incursions into the same premises. (viii) The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value. (ix) The offence was committed at a time when, absent specific knowledge on the part of the offender, it was likely that the premises would be occupied, particularly at night. (x) The actual trauma was suffered by the victim (other than as a result of corporal violence, infliction of actual bodily harm, or deprivation of liberty). That force was used or threatened (other than by means of an offensive weapon, or instrument)." 82 The present case is characterised by each of the seven factors first mentioned in this judgment save for the first; the age and record of the offender, in this case, constituting aggravating circumstances. BREAK, ENTER AND STEAL 83 In the matter of the Attorney General's Application (No 1) under section 26 of the Criminal Appeal Act (Ponfield and others) [1999] NSW CCA 435 the court declined to deliver a quantitative guideline for the offence of break, enter and steal, because of the great diversity of circumstances in which that offence is committed, and also because of the fact that the overwhelming majority of such cases are prosecuted, with the consent of the DPP, in the Local Court where the maximum sentence is only two years. However, a guideline was delivered in relation to the relevant sentencing considerations. 84 Consistently with those guidelines, para 48, it is appropriate for a sentencing judge to "regard the seriousness of offence contrary to section 112(1) of the Crimes Act as enhanced and reflect that enhanced seriousness in the quantum of sentence if any of the following factors are present. Necessarily, if more than one such factor is present there is accumulative effect upon seriousness and the need for appropriate reflection. (i) The offence is committed whilst the offender is at conditional liberty, on bail or on parole. (ii) The offence is the result of professional planning, organisation and execution. (iii) The offender has a prior record particularly for like offences. (iv) The offence is committed at premises of the elderly, the sick or disabled. (v) The offence is accompanied by vandalism and by any other significant damage to property. (vi) The multiplicity of offence (reflected either in the charges or matters taken into account on a Form 1 pursuant to section 21 of the CP Act ). In sentencing on multiple counts regard must be had to the criminality involved in each: Pearce v The Queen (1998) 72 ALJR 1416. (vii) The offence is committed in a series of repeat incursions into the same premises. (viii) The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value. (ix) The offence was committed at a time when, absent specific knowledge on the part of the offender (a defined circumstance of aggravation - Crimes Act section 105A(1)(f)), it was likely that the premises would be occupied, particularly at night. (x) The actual trauma was suffered by the victim (other than as a result of corporal violence, infliction of actual bodily harm, or deprivation of liberty - defined circumstances of aggravation: Crimes Act section 105A(1)(c), (d) and (e)). (xi) That force was used or threatened (other than by means of an offensive weapon, or instrument - a defined circumstance of aggravation Crimes Act section 105A(1)(a))." 85 So far as the count in the second indictment is concerned, factors (i), (iii), (iv) and (ix) of this guideline were present. In relation to all of the Form 1 offences, factors (i) and (iii) were present, and for some of them factors (iv), (vii) and (viii) were present. Those factors I mention are aggravating circumstances noted in the guideline. SENTENCE OF IMPRISONMENT REQUIRED 86 Having regard to the nature of the offences, the prisoner's prior record, and the principles identified above, relevant to each of the charges before the court, this clearly is a case in which the sentences must reflect a significant element of retribution, as well as of specific and general deterrence, particularly in relation to the offence of armed robbery, for the reasons explained in Hayes (1983) 11 A Crim R 187 and Srey NSW CCA 1 November 1996. 87 Moreover, I am satisfied, in accordance with section 5(1) of the Crimes (Sentencing Procedure) Act 1999 that no penalty other than a sentence of full time imprisonment is appropriate. The prisoner's background, the objective seriousness of his offences and the totality of them demands that this be so. 88 I turn, finally, in relation to sentencing principle to the question of totality and to the question of whether the sentences should be imposed concurrently or cumulatively. 89 The case is one that attracts the totality principle explained in Holder and Johnson (1983) 2 NSWLR 245 and in Bell NSW CCA 11 May 1993. It is also one which requires that the sentence be structured in accordance with the approach approved by the High Court in Pearce (1998) 194 CLR 610. 90 The offence of armed robbery, being the second count in the first indictment, was part of a continuing episode of criminality on the one night, but it did involve a discrete offence in which an elderly woman was subjected to a terrifying episode. I am of the view that, to reflect the criminality involved, it should attract a partial accumulation of sentence upon that of the manslaughter. 91 The break, enter and steal offence that involved the home of Mr Jansons was particularly objectionable in that it heaped further harm onto an elderly lady who had already suffered, in a substantial way, from the prisoner's actions. It was in many ways mindlessly cruel for him to have behaved in that fashion. It needs to be taken into account in relation to the sentence for manslaughter. It is such, in my view, as to require some extension of the sentence that might otherwise have been imposed for that offence. 92 The offence of aggravated break, enter and steal in the second indictment was also particularly serious. It is such, when the Form 1 offences are taken into account in relation to it, that some additional partial accumulation is required, in order to reflect the totality of the criminality involved. FIXING A PAROLE PERIOD 93 None of the facts previously noted, in relation to the prisoner's subjective circumstances, hold out much hope for rehabilitation. Unless he significantly changes his attitude to authority figures, or to those who are capable of providing him with assistance for his multifactorial problems, or unless he becomes motivated to do something on his own to break his addiction to drugs, and to adopt a meaningful and crime free lifestyle, the cycle evident from his record over the last 18 years will simply continue. 94 The one faint hope on the horizon is that he apparently has been seriously shaken by the realisation that he has taken the life of another human being. This may be a first step that could cause him to reflect on his own life, in a way that has led other offenders of a similar age and with a similarly bad record, to realise that there is an alternative to recidivism. 95 The prospects are not good but they are not so hopeless as to justify denying him the opportunity of parole. On the other hand, they are not sufficiently favourable for a finding of special circumstances, that would justify any longer period of potential release on parole than the period contemplated by section 44(2) of the Crimes (Sentencing Procedure) Act. 96 In many instances, a record of repeated imprisonment, a risk of institutionalisation, a need for special help to overcome drug addiction, and a need for an accumulation of sentence would constitute special circumstances so as to allow a suitably lengthy period of post release parole (see Lett NSW CCA 27 March 1995, Moffitt (1990) 20 NSWLR 114 and Clarke (1995) 78 A Crim R 226). 97 However, in the instant case, the experience of release on parole of the prisoner in the past has been quite unsatisfactory, as has been his response to attempts at drug rehabilitation. Additionally, the present prospects of the prisoner cooperating in any meaningful way with outsiders, to rehabilitate himself are quite unencouraging. 98 That being the case, I cannot find special circumstances within the meaning of section 44(2) of the Crimes (Sentencing Procedure) Act 1999. The case is one, in my view, where a potential period of release on parole, equivalent to 75 percent of the accumulated head sentence, is both appropriate and sufficient to allow the prisoner an opportunity to disclose whether he now is, or is not, willing to undertake rehabilitation and, if so, to be supervised in that regard. 99 He should also understand that even though the sentence might be completed after expiry of any period of release on parole, he is still eligible to receive assistance from the Probation and Parole Service. That, however, is a matter for him. 100 I sentence you Bradley Dean Bellamy as follows: 101 A) For the offence of manslaughter, taking into account the one matter included in the Form 1 applicable to that count to imprisonment for five years to date from 5 August 1999 and to expire on 4 August 2004. 102 B) For the offence of armed robbery, to imprisonment for five years to date from 5 August 2002. Such sentence is to be served partially concurrently and partially cumulatively on the sentence for the offence of manslaughter. It is a sentence which is due to expire on 4 August 2007. 103 C) For the offence of aggravated break, enter and steal, taking into account the three matters on the Form 1 applicable to this count, to imprisonment for four years to date from 5 August 2005, such sentence to expire on 4 August 2009. Such sentence is similarly to be served partially concurrently and partially cumulatively upon the sentence for the offence of armed robbery. 104 The total head sentence is, accordingly, one which effectively provides for a period of imprisonment for 10 years, although as a whole it equates to a sentence of 14 years imprisonment. 105 I specify a total non-parole period of seven and a half years to date from 5 August 1999, so that the earliest date you are eligible for release on parole is 5 February 2007. 106 By reason of the accumulation of sentences, and by reasons of the requirements of the Crimes (Sentencing Procedure) Act, the non-parole period which I fix for the first that sentence is one that shall expire after three years on 4 August 2002; that I fix for the second sentence shall similarly expire after three years on 4 August 2005; and that I fix for the last sentence shall expire after one year and six months on 4 February 2007. It is upon that basis that the first date on which you will be eligible for release would be 5 February 2007. --- Last Modified: 12/18/2000 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.