New South Wales Supreme Court CITATION : R v Seelin [2009] NSWSC 286 HEARING DATE(S) : 6-16 April 2009 JUDGMENT DATE : 17 April 2009 JUDGMENT OF : Fullerton J DECISION : On the charge of manslaughter I sentence you to a non-parole period of 5 years and 4 months, to date from 2 September 2007 and expiring on the 1 January 2013, with a balance of term of 1 year and 10 months expiring on 1 November 2014. On the charge of unlawful possession of a firearm I sentence you to a fixed term of 2 years and 6 months commencing on 2 September 2007. CATCHWORDS : CRIMINAL LAW - sentence - manslaughter by unlawful and dangerous act - unlawful possession of a firearm - whether firearm discharged accidentally - dispute between neighbours Crimes Act 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Firearms Act 1996 CATEGORY : Sentence Pearce v R [1998] HCA 57; 194 CLR 610 R v Fidow [2004] NSWCCA 172 CASES CITED : R v Lavender [2005] HCA 37; 222 CLR 67 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Wilson v R (1992) 174 CLR 313 PARTIES : The Crown Mark Patrick Seelin (Offender) FILE NUMBER(S) : SC 2008/16497 COUNSEL : H Wilson (Crown) C Jeffreys (Solicitor) (Offender) SOLICITORS : Director of Public Prosecutions (Crown) Jeffreys & Associates (Offender) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST FULLERTON J 17 APRIL 2009 2008/16497 R v MARK PATRICK SEELIN REMARKS ON SENTENCE 1 HER HONOUR: On 6 April 2009 Mark Patrick Seelin was arraigned before a jury on an indictment containing three counts. The first count alleged that on 3 September 2007 he murdered Barry Farrell at Yarrawonga Park in the state of New South Wales. The second count alleged that on 2 September 2007, at the same place, he possessed a loaded firearm so as to endanger the life of another person and the third count that he was in possession of a firearm, namely a Colt single action army revolver, without being authorised to do so by license or permit. Pleas of not guilty were entered to counts one and two. A plea of guilty was entered to count three. 2 On 9 April 2009 the accused was re-arraigned before the jury and entered a plea of not guilty to murder but guilty of manslaughter. The Crown did not seek a plea in respect of the second count on the indictment given that the plea of guilty to manslaughter wholly subsumed the conduct comprehended by the second count. The Crown accepted the plea to manslaughter in full discharge of the indictment. Manslaughter carries a maximum penalty of 25 years imprisonment under the Crimes Act 1900. 3 The firearm offence to which a plea of guilty was entered on arraignment carries a maximum penalty of 14 years as provided for in s 7 of the Firearms Act 1996. This offence is one to which a standard non-parole period of 3 years is prescribed pursuant to the provisions of Div 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act"). The standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences of its type after trial. Where, as here, the offender has entered a plea of guilty the standard non-parole period nevertheless operates as a benchmark against which sentence should be imposed, again having regard to the objective seriousness disclosed by the particular offending. In R v Way [2004] NSWCCA 131; 60 NSWLR 168, the Court held that the assessment of objective seriousness is to be made by reference to the circumstances in which the offence was committed and not the circumstances of the offender, other than those causally connected to the commission of the offence. The evidence in the Crown case on sentence 4 The Crown tendered a statement of facts with which the offender confirmed his agreement by formally adopting it in accordance with s 191 of the Evidence Act 1995. The Crown also tendered three statements from Raphael Jackson, a Scientific Officer attached to the Forensic Ballistics Investigation Section of the New South Wales Police Service. Mr Jackson performed various tests in connection with his examination of the Colt army revolver and took into account tests performed by other scientific officers. This weapon was not only the subject of the third count on the indictment but, as the facts reveal, it was the discharge of this weapon that caused the death of the deceased. 5 The Crown also tendered a report from Dr Lee, the forensic pathologist who performed the autopsy. Dr Lee reported that the cause of death was a single gunshot wound to the head. Dr Lee also produced a certificate of analysis which confirmed the presence of methamphetamine at a level of less than 0.1 mg per litre of blood in the deceased's blood at the time of death. Dr Lee was of the view that this was consistent with a relatively recent administration of the drug. Dr Lee gave evidence in the committal proceedings that methamphetamine, more commonly known as crystal meth or ice, is a stimulant drug that is known to increase the level of aggression in individual users of the drug. This may go some distance to explain the aggression exhibited by the deceased in the events immediately prior to the revolver discharging on 2 September 2007 which resulted in his death on 3 September 2007. 6 In anticipation of giving evidence in the sentence proceedings Mr Jackson subjected the revolver to further testing with a view to supplementing his reports as to the theoretical capacity of the revolver to discharge accidentally when force is applied to either the muzzle or hammer, and when the hammer is in the forward position with a cartridge in the chamber at the position of "12 o'clock" against the firing pin. This was the configuration of the revolver when the gun discharged causing the death of the deceased. Mr Jackson's evidence was critical to the resolution of the question whether it is possible, in the particular circumstances of this case, such as they are revealed by the evidence, that the revolver discharged accidentally and killed the deceased or, to put it more precisely, whether having regard to the evidence taken as a whole, I am left in doubt as to whether the offender deliberately cocked the hammer of the revolver and depressed the trigger while pointing it at, or in the general direction of, the deceased. 7 The Crown accepted that it must establish beyond reasonable doubt that the weapon discharged by reason of the deliberate act of the offender in pulling the hammer of the revolver to the fully cocked position and depressing the trigger if it is to meet the offender's case on sentence that the revolver discharged by accident. The evidence in the offender's case on sentence 8 The offender gave evidence which in significant respects supplemented the agreed facts. In particular, he supplemented the agreed facts as to what occurred in the immediate lead up to the revolver discharging and the circumstances in which it discharged. In this respect, his direct evidence needs to be carefully considered in the context of the opinion evidence of Mr Jackson. His evidence also needs to be carefully considered in the context of the agreed facts in other respects. In particular, his account of the time frame during which he had possession of the loaded revolver, the circumstances in which he came into possession of it and, most importantly, the reason he had actual physical custody and control of the weapon on the day the deceased was shot. These matters were in dispute on sentence. 9 The offender's father also gave evidence as did his former partner. Their evidence went some distance to supporting the offender's evidence that the revolver discharged accidentally, since this was the account he gave to each of them on the day of the shooting. However, having regard to other conduct of the offender immediately after the deceased was shot, I do not consider that this aspect of their evidence is of very great weight. Their evidence, together with a body of testimonial evidence and the evidence of Mr. Anthony Diment, psychologist, was relevant however to the offender's subjective circumstances which are also material on the question of sentence. I will refer to that evidence in some detail later. The victim impact statement of the deceased's father 10 I received a victim impact statement from the deceased's father. I propose to take it into account in the way provided by law. He described the deceased as a loving and devoted father to his four children, and a loyal son and brother. He describes the impact of his son's death as devastating. I accept that the circumstances in which he died have left a permanent scar on the family. While the family may expect to see their loss reflected in the sentence to be imposed, that is not the objective of sentence proceedings in our system of justice. No sentence can truly or adequately compensate for the loss of a loved one. I extend my sympathies to the family of the deceased. The plea of guilty to manslaughter 11 It will be necessary for me to refer to the agreed facts and to the oral evidence called by the Crown and the offender in some detail since it is well established that of all the offences in the criminal calendar, the offence of manslaughter produces the greatest variety of circumstances affecting culpability and attracting, for that reason, a wide range of sentences (see R v Lavender [2005] HCA 37; 222 CLR 67 per Gleeson CJ, McHugh, Gummow and Hayne JJ at 77). In recognition of that fact, and in conformity with the observations of other judges of this Court, neither statistical examination nor the examination of results in other cases can assist me, in any decisive way, in reaching a decision about sentence in this case. In the infinitely varied circumstances in which manslaughter is either admitted by an offender or proved against an offender at trial, what remains the fundamental touchstone for sentencing purposes is that there has been an unlawful taking of a human life. So it is in this case. For that reason, the recognised sentencing principles of punishment, retribution and deterrence must each play their part in the sentencing process. 12 In this case I have been confronted with factual disputes of various kinds, the resolution of which have a very real impact on the objective seriousness of the offender's admitted conduct. For example, it is necessary for me to decide why he had unlawful possession of a loaded revolver for some weeks at least prior to the shooting, so as to put in context the reasons why he had it in his immediate physical custody on the day of the shooting. This will involve me coming to a decision as to the circumstances in which he came to be in possession of the weapon in the first instance. In deciding those questions it will be necessary for me to consider whether the offender's explanation as to each of these issues was credible. 13 He gave evidence that the weapon belonged to the deceased and that he was asked by the deceased to hide it some months prior to September 2007 and that he agreed to do so as a favour and had simply not returned it. The Crown submitted that to the extent that this is relied upon as a matter in mitigation I would reject his account. If I am not satisfied that his account is credible, the related question is whether I am able to give any weight to his account of what occurred in the minutes immediately prior to the revolver discharging given that his evidence is the only direct evidence of how the revolver was handled and presented when it discharged, killing the deceased. 14 The resolution of these questions also has a direct bearing upon the objective seriousness of the firearm offence which in turn bears directly on the imposition of sentence on that count. The manslaughter and the firearm offences are different in character and attract different maximum terms of imprisonment. Pearce v R [1998] HCA 57; 194 CLR 610 requires me to impose separate sentences on both counts and only then to consider the question of accumulation or concurrency in recognition of the principle of totality. The Crown submitted that partial accumulation of the two sentences was warranted in this case since, despite the fact that the offender's possession of the firearm was particularised in the charge as specific to 2 September 2007 - the day of the shooting - the evidence disclosed that he was in possession of the revolver, knowing it was unlawful, for some considerable period prior to that date and that the circumstances in which he came into possession of it, and the way he had conducted himself from time to time since that time, by brandishing and boasting of his possession of it as a loaded firearm, aggravated the criminality inherent in the firearm offence to a level of seriousness such that his possession of it on the day of the shooting should attract additional punishment. 15 If on the other hand I take those matters into account when assessing the objective criminality reflected by the manslaughter count – a matter that can only be sensibly addressed after resolving the question whether the revolver discharged accidentally or deliberately - it would not be open for me to punish the offender twice for the same conduct and then concurrent sentences might be imposed. The plea to manslaughter 16 The Crown accepted the plea of guilty to manslaughter on the basis that the offender's act in possessing a prohibited weapon, and pointing it at or in the general direction of the deceased when he knew the weapon was loaded was both unlawful and dangerous, and that a reasonable person in his position would realise that his conduct exposed the deceased to an appreciable risk of serious injury, even though the Crown accepted that the offender did not intend to kill the deceased or to inflict grievous bodily harm (see Wilson v R (1992) 174 CLR 313). 17 At the time the facts were agreed to, and the plea entered, the question of whether the revolver discharged accidentally or deliberately was not settled. Importantly, the ballistics evidence remained to be tested and the offender had not provided his account of what occurred after exercising his right to silence on his arrest. 18 After a contested sentence hearing the Crown advanced the submission that even were I persuaded that the weapon did not accidentally discharge but that the offender cocked it in preparation for firing (either immediately before or at the time he first presented the weapon at the door to his home), and that he then fired it at or in the direction of the deceased, it was still open to me to sentence him on the basis of manslaughter by an unlawful and dangerous act if I were satisfied that he did not do so with the intention of killing the deceased or inflicting grievous bodily harm, but either with the intention of scaring him or even doing him some harm less than serious harm or death. 19 In the event that I am satisfied that the evidence does not support the possibility that the revolver discharged accidentally, but I am satisfied beyond a reasonable doubt that he cocked and discharged the revolver with the intention of killing the deceased or inflicting grievous bodily harm, it is accepted by the Crown that the offender is to be sentenced on the charge of manslaughter on the basis that he had a legitimate basis for reasonably fearing for the safety of himself and the four children inside the house when the deceased ran after him in a threatening manner and attempted to force his way into the house, but that his conduct in raising and pointing a loaded and cocked revolver and then depressing the trigger was not a reasonable response, even in the circumstances as he perceived them. The relationship between the deceased and the offender 20 The two men were born within six months of each other in 1970. Accordingly, at time of the incident they were both 37 years of age. They had been neighbours living with their respective families at 109 and 111 Yarrawonga Park Road in Yarrawonga Park for some years prior to September 2007. 21 The deceased moved to the area in 2001 with his partner, Ms Sigg, and their four children while the offender purchased the house next door some years later. He initially lived at the house with his then partner, Ms Vairy, and their two daughters. In January 2007 the offender and Ms Vairy separated although their daughters regularly visited the offender and sometimes stayed over night. The offender's daughters, together with two of their girlfriends, slept overnight at his home on the evening of 2 September 2007 in advance of Father's Day celebrations the following day. The girls were aged between 9 and 13. They were all in the house at the time of the shooting. 22 In April 2007 Ms Mancini and her four children moved in with the offender. The youngest child was a newborn at that time. Ms Mancini and the baby were also at the offender's home at the time of the shooting but the other three children were visiting their father. 23 After the offender moved to Yarrawonga Park Road the deceased and his family and the offender and both Ms Mancini and Ms Vairy and their respective children, developed a friendship and occasionally socialised together as families. In particular, the offender's eldest daughter and the deceased's eldest daughter developed a close friendship and they were frequent visitors in each other's homes. The deceased and the offender also shared an interest in Harley Davidson motorcycles and from early 2007 their friendship developed around that common interest to the extent that they spoke with one another frequently as neighbours and friends and shared a drink on a reasonably regular basis. The breakdown in the relationship – the offender is assaulted 24 It would appear that friction first developed between the offender and the deceased after Ms Vairy and the offender separated. The reason for this is not entirely clear, although there are suggestions that the offender played loud music, often late at night. In August 2007 the tension between the offender and the deceased heightened. On one occasion Ms Sigg was openly critical of the offender permitting his daughter to visit with him at their home after midnight - criticism which the offender responded to by swearing at her, as a result of which he was asked to leave. 25 From that time there was considerable ill will between the two men which ultimately erupted into violence on 22 August 2007 when the deceased assaulted the offender by strangling him and repeatedly punching him around the face and head from which he sustained a black eye, cuts to his face and red welts around his neck. Photographs were tendered evidencing these injuries. 26 The offender gave evidence that when he was being strangled by the deceased he said "that's for putting it on my missus". Whether or not that was the case (and there is no evidence one way or the other) that was no lawful justification for the deceased to have conducted himself as he did. His conduct was plainly criminal. The offender was counselled by a number of people to report the matter to the police, however he was reluctant to do so for fear of reprisals. I am satisfied that his fears were well founded, not only because of the vicious attack he was subjected to and the injuries he sustained at the hands of a man bigger and stronger than he, but also because from the time of the assault the deceased made it clear that the offender was not welcome in the neighbourhood and that he should make arrangements to sell his house and move his family away lest they be harmed. He was apparently given two weeks to do so. The offender told a friend of his he was "shit scared. He's threatened me, my wife and my kids and to burn the house down". 27 It is of significance to the question of sentence that the assault was committed in the offender's home while the offender was in bed and after the deceased let himself into the house by the closed but unlocked front door. It is also of significance that this occurred when Ms Mancini and her infant were in the house and that she witnessed the assault. It is not suggested that the offender retaliated at the time other than verbally by issuing threats of various kinds from the upstairs veranda at the front of his house as the deceased made his way back to his own house. Although this included a threat to kill the deceased, I accept that this was a reflection of his anger at being assaulted, and perhaps in response to the deceased's threat to get a baseball bat to continue the fight, as distinct from evidencing any actual intention on his part to kill the deceased or to cause him serious injury. 28 Some short time after the assault, when a vehicle the offender was selling was discovered with a smashed window, the offender believed that the deceased was responsible. Whether or not the deceased was responsible for the damage to property is not to the point. It is relevant to the offender's state of mind when the deceased verbally and then physically confronted him in the afternoon of 2 September 2007. The offender is seen with the revolver 29 A number of people observed the offender in possession of the revolver after he was assaulted by the deceased. In the week before the shooting Ms Mancini saw the gun on a shelf in the bar area of the offender's home and asked him to move it given that there were children in the house. A friend of the offender's visited him a few days before the shooting and saw the revolver in the front of his pants. She did not believe the gun was real and said so. The offender told her that the gun was real and that it was loaded. Another friend warned him to get rid of the gun as it was likely to blow up in his face 30 More significantly, shortly before 2 September 2007, Mr Sanday, another friend of the offender's, saw the offender with the gun down the front of his pants when he was visiting the offender's home. He said the offender pulled it out and was showing off by dropping the gun, but catching it before it hit the ground. Both Mr. Sanday and Ms Mancini took the gun from him and hid it. He later told them to give it back to him, saying, "I'm not going to get bashed again in front of the kids". The offender's explanation for his possession of the revolver 31 As I have already noted, according to the offender the deceased asked him to hide the revolver as a favour some time around May 2007. He told the offender that he and his father had used it to threaten another person and he was concerned that the police may wish to search his home. The offender gave evidence that when he was given the revolver it was wrapped in a cloth, and that within an hour of taking it into his possession, he hid it under the shed. He gave evidence that he did not ask the deceased at that time, or at any other time, whether the gun was loaded or whether it was otherwise in working condition. He could offer no explanation as to why he would leave a weapon he knew nothing about in a relatively unsecured place with young children living in his home and where his own daughters visited him frequently. While it might be thought that the offender was simply careless or unthinking in behaving in this way, this is contradicted by the overwhelming weight of the testimonial evidence to the cumulative effect that the offender was a caring, loving and attentive parent and a person with whom other parents would willingly leave their children. Despite the fact that there is evidence that the deceased and his father did in fact threaten another named person with a gun, I am not satisfied that the revolver that was discharged causing the death of the deceased was given to the offender by the deceased to hide, much less that the weapon was at any time under his shed. I am persuaded to that conclusion for a number of reasons. Firstly, he was seen by others to be in possession of the revolver from as early as the first week in July 2007, and at no time did he conduct himself other than as the owner of the weapon and as a person well-versed with its use as a firearm. Secondly, I regard his evidence about conversations he claims to have had with the deceased about the deceased either retrieving his revolver or the offender returning it to him both on the date of the incident and prior to that day as wholly unsatisfactory. 32 Accepting that the offender was genuinely in fear of the deceased after he was assaulted on 22 August 2007 and for the days thereafter leading up to 2 September 2007, I regard it as quite simply incredible that the offender would have considered returning a loaded weapon to the deceased. Furthermore, if the deceased had given the offender the loaded revolver in the circumstances that the offender described in his evidence it is equally incredible that the deceased would not have insisted on recovering it (perhaps even under force) when the friendship between them dissolved in acrimony. 33 In the result, I am satisfied that the offender had possession of the revolver as early as July 2007 (although I cannot be certain as to the circumstances in which he first obtained it or his reasons for obtaining it) and that he had it in his physical custody, or in close proximity to him, at all times after his friendship with the deceased broke down with a view to using it to protect himself or his family against violence, or the threat of violence, by the deceased. 34 Despite the intense state of friction between the offender and the deceased, and despite the offender's perception that he needed protection, whether to defend himself and his family or to give the appearance of being able to do so, he was not entitled to be in possession of the revolver without a license. He will be sentenced for the offence that he committed by that conduct. The offence is not trivial. Even without the tragic consequences that were a direct result of him being in possession of the revolver, a term of imprisonment was a potential outcome of sentence proceedings for that offence alone. The fact that the revolver was loaded for some days before 2 September 2007, (and on the view I have taken of the evidence, necessarily loaded by the offender himself), and that it was at all times within easy reach of the offender's family of young children, reveals at best a grave error of judgment on his part and at worst his indifference to the obvious risk to the safety of his own family members and others by having a loaded gun in the house. The fact that he openly and repeatedly boasted about having the loaded gun, and at least impliedly being prepared to use it, is most disturbing. While I accept that this conduct does not of itself reveal a preparedness to kill or inflict serious harm it does nothing to mitigate the objective seriousness of his offending in causing the death of the deceased irrespective of whether the gun discharged accidentally or not. In the circumstances of this case, it was the offender's very preparedness to use the loaded revolver, even if only to scare the deceased, that resulted in his death. Were the revolver not loaded, whatever else may have occurred on 2 September 2007 (and I acknowledge in that regard the probability that the offender might have been physically assaulted, and perhaps even seriously, were the deceased to have successfully broken through the screen door) there is every reason to suppose there would not have been a fatality. The events of 2 September 2007 35 Sunday 2 September 2007 was both Father's Day and Ms Sigg's birthday. The deceased and his partner celebrated the night before with family and friends with the party spilling over into the following day. 36 The offender was at home with his daughters and their young girlfriends on Saturday night and into the following day. At some stage, which Ms Sigg estimated by reference to lunch time (a time which she appointed as ordinarily falling between noon and 1pm) she heard the offender speak to the deceased over the fence while he was on the driveway outside their home. She heard the offender say, "I've got something to show you Barry or "I've got something for you Barry. Come over here, I've got something for you". She told the deceased to ignore him. She did not hear the deceased respond in any way and he did not report to her that he was shown anything. She did however give evidence, and in categorical terms, that it was within 10 to 15 minutes after that that she heard what she later learnt was a gunshot. She said she was inside the house at the time and did not hear any words exchanged before the bang. 37 The offender confirmed that he approached and spoke to the deceased that day and that he was referring to the revolver when he said he had "something to show him". He also gave evidence that he was at that time intending to return the deceased's revolver to him and that since it was Father's Day it was a good opportunity to return the gun without incident but that he did not have the revolver with him when he approached the deceased, that it was inside the house in the bar area. He maintained that the deceased ignored him completely and that the subject of returning the revolver was therefore not discussed. He did not give evidence of the time of day that he made his approach. 38 What the offender was doing or intending to do by his approach at this time, and whether or not I accept his evidence that he did not have the revolver with him as he approached, was the subject of dispute. Self evidently, if I am satisfied that the offender had the revolver in his possession within 10 to 15 minutes of it discharging, and that he approached the deceased intending to show it to him in a provocative manner, whether intending to fuel the feud or to demonstrate his preparedness to hold his ground in the face of the deceased's threats to harm him and his family if he did not move from the area, is a most material matter. 39 Since I have rejected the offender's explanation for his possession of the revolver it follows that I must also reject his account of why he went to the fence to speak to the deceased that day. While that finding does not permit me to immediately conclude against the offender that he was behaving provocatively when he approached the deceased, it does allow me to confidently find that he had the weapon down the front of his pants at that time. Frankly, I cannot interpret his evidence in any other way. He could give no plausible explanation as to why he would have had the revolver in the house when he agreed that he said to the deceased that "he had something to show him", but that at other times that afternoon he had the revolver down the front of his pants for entirely unexplained reasons. In addition, I accept Ms Sigg's evidence that there was no significant time lapse between hearing the offender speaking with her partner and her partner being shot. 40 Having regard to this evidence, and the inferences to be legitimately drawn from it, I am more than satisfied that the offender was armed when he approached the deceased at the fence and that he did so without any intention of securing the peace between them. I am not however able to be satisfied that the deceased was in fact provoked by his approach because there is no evidence that the offender produced the revolver or that the deceased saw it. I am satisfied that the deceased, for his own unexplained reasons, acted aggressively very soon thereafter and that he crossed into the offender's property with the intention of physically assaulting him. 41 Ms Sigg's evidence as to the time frame between the offender's approach and the gunshot is not in my view inconsistent with the evidence of Ms McKean, Ms Mancini's mother, despite the fact that Ms McKean appoints the time of the shooting at after 3pm and that there is no doubt that this is when the fatal shot was fired. Ms Sigg must simply be in error as to the time that she was preparing lunch on that particular Father's Day. 42 Some time before 3pm Ms Mancini was called away from the home to deal with one of her children who had been injured whilst visiting his father. She arranged for her mother to come and collect her and take her to the hospital. Ms McKean's statement records the fact that she pulled up outside the offender's house at about 3pm. She said that offender was inside the house and that she spoke to him briefly. She said her concern was to get to the hospital and that the offender came out into the front yard of the house to assist in putting the baby seat into the car. One of the young girls also came outside to see if she could help with the baby. 43 At this time Ms McKean heard the deceased call out to the offender over the fence that divided the two houses saying "Are we right now? We're gunna finish this now. Where's your sign? Your two weeks are up". She observed the deceased run from his home to confront the offender in his front yard and that the offender started to back away. The agreed facts record that he walked, and then ran in through the front entrance of his house closing the screen door behind him and latching the mechanism to the locked position. He did not shut the wooden entrance door. The deceased followed him. Both men were yelling. The offender said words to the effect, "Don't do this now, I have children in the house". 44 It is not in dispute that the offender had already drawn the revolver from his pants by that time. One of the young girls saw him with it in his hand outside the house and two of the young girls who were inside the house, but with an obscured view from the lounge room, saw the offender raise the revolver and point it at the direction of the deceased when he was on the outside of the screen door. The offender gave evidence that he was not aware of the revolver in his pants until he commenced to run back inside the house and that he only removed it then because it started to fall from his pants. I reject his evidence in that regard. I am satisfied that he drew the revolver from his pants as he was running to his house and that he thereafter presented it at the deceased as they confronted each other at the screen door. It is beyond doubt that the deceased shoulder-charged the screen door at this time with sufficient force to dislodge four metal rivets which held the grill to the door frame and to cause the pattern of bruising to his right shoulder which was revealed to Dr Lee on autopsy. 45 The question which I will address in a moment is whether the considerable force that was applied to the door, and/or the actions of the offender in resisting the deceased's aggressive attempts to force entry to his home might, in all the circumstances, give rise to a reasonable possibility that the revolver discharged accidentally. 46 The revolver discharged a single shot with the bullet entering the deceased's skull above his left eye penetrating along a horizontal track to the back of his brain. There was no exit wound. He immediately fell heavily backwards to the concrete surface of the area at the entrance to the offender's house. The offender opened the security door and stepped outside. He wiped the revolver on his shirt then bent down over the deceased and placed the revolver into his hand closing his fingers around it. It is not clear on the evidence, whether the deceased's hand ever had an effective grip on the revolver given that a neighbour who tried to assist with the resuscitation efforts saw the revolver near the deceased's hand as distinct from in it. 47 The significance of the offender's actions lie in his admitted attempt to conceal his responsibility for the death by placing the revolver to simulate that it was the deceased who was armed and that he had shot himself. I am satisfied that it was with this same objective in mind, but this time in an effort to conceal evidence of the bullet passing through the screen door (necessarily from inside the house) and striking the deceased that the offender pulled the fly screen mesh away from the metal grill of the security door. Ms Mancini moved the mesh, at the offender's direction, to a wooden shelving unit along the side of the house. It was later recovered by police and subjected to various forensic tests with a view to establishing, amongst other things, how the revolver was held when it discharged, the relative positioning of the offender and the deceased at that time and whether the revolver might have discharged accidentally. 48 After transferring custody of the gun to the deceased and directing the removal of the wire mesh the offender went back inside the house and spoke to the children, telling them to go upstairs. One of Ms Vairy's daughters was in distress and spoke of her fears that the offender would go to prison. He assured her that he had done nothing wrong. He told the children that the deceased had shot himself. Later when Ms Vairy arrived at the house the offender told her that the deceased was banging on the door in the process of which he shot himself. 49 Ms Mancini and her mother ran to the deceased in an effort to assist him. Ms Mancini called the triple 0 emergency number while her mother administered cardiopulmonary resuscitation. Despite their endeavours the deceased did not regain consciousness. In Dr Lee's view, given the site of the wound and its track through the brain, death was inevitable. 50 The offender was in the process of leaving the house in his car when police arrived. He was asked to put the bag he was carrying on the roof of the car. He complied without hesitation. He was arrested at the scene some time later and taken into custody. 51 On one view, his conduct within minutes of the deceased being shot showed a calm and considered presence of mind consistent with knowing that he had intentionally discharged the revolver and inconsistent with his claim to some that he spoke to at the time, and in his evidence before me, that the gun discharged accidentally. On the other hand, it may be that there is no inconsistency at all and that his efforts to avoid responsibility for his actions and their consequences are equally consistent with the gun discharging accidentally and that he feared, in the immediacy of the moment, that accident may not be susceptible to proof. He may also have been legitimately concerned to allay the concerns of the children who had seen him point the revolver and heard it discharge, irrespective of whether the gun was discharged accidentally or not. In the result, his conduct after the shooting, however selfish, callous and lacking in empathy it may appear, does not assist me in resolving the critical question whether the gun discharged accidentally or not. Neither do I consider that his behaviour at the time undermines his expression of remorse then and since. I note that despite his efforts to attribute responsibility to the deceased, the agreed facts also report that at the scene, prior to the arrival of the police, he displayed shock, confusion and upset. The scientific evidence bearing on the question of accidental discharge 52 Mr. Jackson's evidence establishes the following propositions of fact in regards to the mechanism by which the revolver discharges both by design and accidentally: 1. The usual means of discharging the revolver when it is loaded with a cartridge under the hammer at the 12 o'clock position is with the hammer in the fully cocked position and the trigger depressed. 2. It is subject to unintentional discharge where a cartridge sits under the hammer at the 12 o'clock position, the hammer is in the forward or fired position, and there is direct application of force to the end of the muzzle equivalent to 1.13 kg. 3. The revolver is also subject to unintentional discharge when the cartridge and the hammer are in a like position to 2 above, but when force is directly applied to the hammer equivalent to striking it with a rubber mallet weighing no less than less than 0.5 kg (although it was also noted that thumb pressure on the hammer will create an impression on the cartridge head but without causing it to discharge). 4. In 2 and 3 above, the mechanism by which the gun discharges accidentally is that pressure is applied to the cartridge in the chamber such as to bring it in contact with the firing pin under sufficient force to cause it to discharge. For that reason, the application of force to the side of the revolver whether at the handle, on the undercarriage of the muzzle or at an angle to the muzzle at any point along its length will not result in accidental discharge. 5. If accidental discharge occurs by either of the stipulated means, the application of force and the discharge of the projectile are virtually instantaneous precluding the possibility of force being applied and the revolver moving away from the source of that force and then discharging. 6. The pattern of the spread of nitrite deposits detected on the mesh of the screen door, and the size of the spread is indicative of the firearm having discharged when the end of the muzzle was between 5 and 15cm from the mesh. (I note that this is not inconsistent with the conclusion reached by Dr Lee that the muzzle of the revolver was at least 20cm from the head of the deceased at the point of discharge. That said, Dr Lee's evidence does not assist greatly in the resolution of the question whether the Crown has negatived the possibility of accidental discharge given that there is no way of ascertaining how far the deceased's head was positioned from the external face of the screen door at the time that he was shot). 7. The pattern of the spread of the nitrite, the bullet hole in the mesh in the approximate centre of the pattern, indicates that the muzzle of the revolver was roughly parallel to the floor and perpendicular to the mesh when it was discharged. 8. The bullet did not at any time come into contact with the metal of the grill and there was no evidence that the muzzle of the revolver contacted with the door. 53 In the result, it was Mr Jackson's opinion that, having regard to the distance between the end of the muzzle and the mesh at the moment the revolver discharged, it did not discharge due to the application of force to the end of the muzzle. He was not, however, asked to consider the risk or the possibility of accidental discharge in the context of the account the offender gave in evidence, namely that he first presented the revolver at the deceased when he was inside the screen door by pointing it at him with the gun in his left hand in an outstretched fashion, and that he then bent his arms, raising his left hand in alignment with his right hand at or around his head as if in a shielding action as the deceased shoulder-charged the screen door a second time, at which point the gun discharged. 54 I am conscious of the limits that obtain when an expert, however well qualified, attempts to reconstruct the circumstances in which a person is fatally shot given that, as is exemplified in this case, it is impossible to replicate with precision the actions, reactions and momentum of the person with the gun and the person who is shot particularly when, as is again exemplified in this case, their movements are fluid and dynamic, and when the confrontation and the discharge of the firearm occurred in a time frame measured in seconds. This case has the added dimension that the screen door separating the two men was itself subject to force sufficient to distort its metal frame and the security grill. Despite these express reservations, I regard Mr Jackson as an impressive witness. He was careful, balanced in his approach and attentive to detail. Importantly, he gave no indication of either favouring or disregarding the competing scenarios he was asked to consider by the cross-examiner without first applying reason and analysis within his field of expertise. 55 While I accept the theoretical possibility that with the kinetic energy that accompanied the deceased's charge at the screen door, and the offender's own offensive and defensive movements behind the door in what might fairly be described as the agony of the moment, force might have been applied to the muzzle of the revolver, or the hammer of the revolver, sufficient for it to discharge without the offender intending that that occur. However, there is insufficient objective evidence to raise that possibility beyond the mere theoretical. Self evidently, the revolver did not accidentally discharge on any other occasion when it was casually handled by the offender. There was no evidence that it was handled by him with any particular care to avoid it coming into contact under force or pressure with another object or surface, indeed the evidence is suggestive of the contrary. In addition, since I have grave doubts as to the offender's credibility generally as a witness, I am unable to give his denial that he cocked the weapon and depressed the trigger any weight at all. 56 For these reasons, I am satisfied that the Crown has discharged the onus of excluding the possibility of accidental discharge of the revolver beyond reasonable doubt. However, I am not satisfied that in intentionally firing the revolver the offender intended to kill the deceased or to cause him grievous bodily harm. Despite my grave reservations as to the offender's honesty, I cannot be satisfied that he pointed the gun at any particular part of the deceased's body when he depressed the trigger, as distinct from him pointing the revolver generally in the direction of the deceased, intending to deflect his attempts to force his way through the locked screen door, and that the dynamics of the deceased's movements, in particular the use of his right shoulder against the screen door, more than likely brought his head into the path of the bullet as it passed through the mesh of the door such as to result in a horizontal tracking of the passage of the bullet from the point of entry through to where the bullet was deposited in the back of the left side of his head. I also emphasise that the circumstances as they presented to the offender did not permit of any controlled or considered reflection on his part and that his conduct in discharging the weapon deliberately must be viewed in that context. The offender's subjective circumstances 57 I have received written testimonials from a large number of the offender's friends and family attesting to his prior good character and his commitment to his family. I accept that he is viewed by many as an enthusiastic, motivated, hard-working father dedicated to his daughters and their wellbeing. 58 He left school and completed a TAFE course in motor mechanics working as a roadside service mechanic for the NRMA for about six years before opening a motor vehicle workshop with his brother. It seems that he abandoned his employment in the motor trade during his mid-20s and joined with a friend in making outdoor furniture for a number of years after which he worked as a concreter and a landscape gardener before acquiring his license as a metal fence contractor. He worked in that business with his brother and his father for some years. 59 He has also been responsible for unsolicited acts of kindness and has shown generosity and compassion towards others both in his immediate family and his extensive circle of friends throughout his life. 60 In addition, those that know him well have never seen him lose his temper or display outbursts of anger or aggression. They all regard his behaviour on 2 September 2007 as entirely out of character, as do I. 61 On the basis of this material, and the fact that he has not relevantly come to the notice of the authorities in the past, I am prepared to accept that the events that precipitated the fatal confrontation with the deceased on 2 September 2007 were unprecedented in his life up to that time and that he simply lacked the judgment or wisdom to deal with them in his own interests, and the interests of others, including the deceased, in a lawful and appropriate way. I have already found that he acted in defence of himself and his children by running into the house and that he pointed the revolver and discharged it with that intention. I accept that the offender is unlikely to reoffend and otherwise has sound prospects of rehabilitation. These matters operate in mitigation of sentence. The plea of guilty 62 The plea of guilty is also a relevant fact in mitigation however the utilitarian value of the plea in this case is significantly diminished by reason of the fact that it was entered three days after the trial commenced. In all the circumstances I consider a discount of 10 per cent is appropriate. Mr Diment's report 63 The results of the formal psychological assessment by Mr Diment reveal that the offender assesses as above average on reliable measures of anxiety and depression. Both mood states are in part due to the current proceedings and the offender's current incarceration. However, Mr Diment is of the opinion that the offender suffered a mild chronic depressive illness at the time of the shooting, which was not treated professionally. It was made worse by his excessive use of alcohol and cannabis. 64 I am satisfied that the breakdown in his relationship with Ms Vairy in early 2007 coincided with an increase in his alcohol consumption and his use of recreational drugs. It would also appear that he was not working consistently at this time. He told Mr Diment that in retrospect he was drifting. His close family members also reported that he did not deal with the separation well despite the fact that he maintained a good relationship with his former partner in the interests of their daughters. 65 I accept that there was a progressive loss of focus and clear thinking in the offender's life circumstances following his separation earlier in 2007. He told Mr Diment that during this period he found it hard to make decisions, that he was generally in a depressed mood and that the only positive thing he saw was his daughters in whose company he endeavoured to resist excessive use of alcohol and the use of drugs altogether. While his mood state and temporary social dysfunction may provide some context to his offending, it is not submitted that this or his use of drugs or alcohol is a relevant mitigating factor on sentence. It is submitted, however, that it is a matter properly to be taken into account on the question of special circumstances. In Mr Diment's view the offender would benefit from supportive psychological counselling to assist with issues relating to his relationship breakdown, to establish future goals, and to address his abuse of alcohol and other drugs so as to prevent his relapse into the use of these substances as coping techniques for perceived problems. That said, Mr Diment was also of the view that his prognosis was positive, assisted by his own motivation for change, a good work ethic and positive support from his family. Special circumstances 66 The Crown submitted that despite the fact that a finding of special circumstances is available by reason of the fact that the offender has not served a term of imprisonment previously, that fact is not sufficiently special in all the circumstances to vary the statutory ratio as provided for in s 44 of the Sentencing Act, particularly given the very considerable support available to the offender from his parents, his siblings and his former partner on his release. In those circumstances, so it is submitted, his reintegration into the community is likely to be well supported with little or no need for an extended period of supervised or unsupervised parole. I am mindful of what the Chief Justice noted in R v Fidow [2004] NSWCCA 172 at [22] and acknowledge that simply because there are circumstances capable of constituting special circumstances present in a case, that does not mean that a sentencing judge is obliged to vary the statutory proportion of head sentence and non-parole period. It is necessary that the circumstances be sufficiently special to justify a variation. I am not persuaded that the fact that the offender is to serve a term of imprisonment for the first time, or that he would benefit from counselling on his release, is sufficiently special to justify a finding of special circumstances in this case. 67 In imposing a sentence of imprisonment I am acutely conscious that there is a legitimate community expectation that human life will be valued above all else and that those who unlawfully kill will be punished. I am also conscious that the community expects that sentencing judges will reserve the harshest punishment for those whose conduct exhibits the highest level of moral culpability. I am not satisfied that this offender's moral culpability is of that order. I do, however, accept the Crown's submission that the objective seriousness of the offence is towards the higher end of the range for manslaughter by an unlawful and dangerous act and that while the offender was provoked by the deceased, his own conduct in approaching the deceased at the fence within a short time of the shooting was intended to be confronting. In addition, as I have sought to emphasise already in these remarks, the deceased died as a result of the offender's unlawful possession of the revolver, a weapon that was in his possession inherently for offensive purposes, albeit in circumstances where he had a legitimate basis to fear the deceased. He was observed by many people to carry the loaded revolver in the days or weeks preceding shooting, posing by that fact alone a risk to himself and to others. He was counselled to seek the protection of the police but for his own reasons, perhaps legitimate reasons, he chose not to do so. Finally, the offence was committed in a family home in a residential street where young children, both the offender's children and the deceased's children, were exposed to criminal conduct of the most egregious kind. 68 As I have sought to make clear from my remarks, the sentence to be imposed must both denounce the offender's conduct and deter others who may find themselves in situations of domestic or neighbourhood stress or conflict from arming themselves with weapons of any kind, whether it is intended to use those weapons defensively or not. The obvious possibility of serious injury or death occurring increases to the point of certainty where a loaded firearm is the weapon in question. 69 For that reason, and despite the various matters taken into account in the offender's favour in mitigation, the sentence of imprisonment must reflect the various features to which I have referred which, in combination, reflect the high level of objective seriousness in his offending. 70 Since I propose to take into account in the calculation of sentence on the manslaughter count the offender's possession of the loaded firearm for a period of months preceding the shooting, and the risk to which he exposed others by his conduct in the weeks preceding the shooting, I propose to order that the sentence on the firearms offence be served wholly concurrently with the sentence for manslaughter. Orders 71 Mark Patrick Seelin on the charge of manslaughter I sentence you to a non-parole period of 5 years and 4 months, to date from 2 September 2007 and expiring on the 1 January 2013, with a balance of term of 1 year and 10 months expiring on 1 November 2014. On the charge of unlawful possession of a firearm I sentence you to a fixed term of 2 years and 6 months commencing on 2 September 2007. Accordingly, you are eligible to be released to parole on 1 January 2013. ********** 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.