New South Wales Supreme Court CITATION : R v Gabriel [2010] NSWSC 13 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 29 September 2009 - 9 November 2009 27 November 2009 JUDGMENT DATE : 4 February 2010 JUDGMENT OF : Price J at 1 DECISION : Convicted. Sentenced to imprisonment with a non-parole period of 6 years 3 months to commence on 21 January 2008 and to expire on 20 April 2014. Balance of term of 3 years to commence on 21 April 2014 and expire on 20 April 2017. Eligible to be released to parole on 20 April 2014. CATCHWORDS : CRIMINAL LAW - sentencing - jury verdict of manslaughter - provocation - self defence - effects of depression and dementia - discount for plea to manslaughter Crimes (Sentencing Procedure) Act s 21A(2)(c), s 21A(2)(eb), s 21A(3)(j), s 21A(3)(b), s 21A(3)(e), LEGISLATION CITED : s 21A(3)(f), s 21 A(3)(i), s 21A(3)(i)(i)-(ii), s 21A(3)(g)-(h) Crimes Act 1900 s 23A CATEGORY : Sentence Isaacs v R (1997) 41 NSWLR 374 R v Alexander (1994) 78 A Crim R 141 at 144. R v Blacklidge (NSWCCA, 12 December 1995, unreported) R v Borkowski [2009] NSWCCA 102 R v Engert (1995) 84 A Crim R 67 R v Hemsley [2004] NSWCCA 228 R v Israil [2002] NSWCCA 255 R v KMB [2005] NSWCCA 185 CASES CITED : R v Sutton [2004] NSWCCA 225 R v Wright (1997) 93 A Crim R 48 R v Low (1991) 57 A Crim R 8 R v Ko [2000] NSWSC 1130 R v MacDonald (NSWCCA, 12 December 1995, unreported) R v Pilley (1991) 56 A Crim R 202 R v Previtera (1997) 94 A Crim R 76 R v Vella (NSWCCA, 15 December, 1995, unreported) R v Zeilaa [2009] NSWSC 532 Silvano v R (2008) 184 A Crim R 593 PARTIES : Regina Harb Gabriel FILE NUMBER(S) : SC 2008/20696 COUNSEL : Mr Dailly SC (Offender) Mr Tabuteau (Crown) SOLICITORS : Mr D Eid Shad Partners (Offender) Ms C Pendlebury ( Director of Public Prosecution) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PRICE J 4 February 2010 2008/20696 R v Gabriel REMARKS ON SENTENCE 1 His Honour: The jury on 9 November 2009 found Harb Gabriel, the offender, not guilty of the charge that he on 28 January 2008 did murder Wadad Isber but guilty of manslaughter. 2 On the first day of the trial and in the presence of the jury panel, the offender pleaded not guilty to murder but guilty of manslaughter. The Crown did not accept the plea of guilty of manslaughter in full discharge of the indictment and the trial proceeded on the charge of murder. Wadad Isber was the offender's wife. During the trial, the offender accepted that on the afternoon of 21 January 2008 he had struck his wife in the garage of their Baulkham Hills home seven times to the head with a skutch hammer thereby inflicting really serious head injuries upon her from which she died on 28 January 2008. It was the offender's case that at the time he struck the deceased with the first blow with the skutch hammer that he did not intend to kill or to inflict grievous bodily harm upon her but was acting in self-defence as his wife had attacked him with a knife. He was, for the six blows which then followed, acting under provocation. The offender also contended that, at the time of the offence, he was substantially impaired by reason of an abnormality of mind. 3 It is my duty to determine the facts relevant to sentencing the offender. My view of the facts must be consistent with the verdict of the jury and the findings of fact I make against the offender must be arrived at beyond reasonable doubt: Isaacs v R (1997) 41 NSWLR 374 at 378-379. Matters in mitigation may be proved on the balance of probabilities: R v Pilley (1991) 56 A Crim R 202. Self-defence 4 The Crown submits that the jury was satisfied beyond reasonable doubt that the offender did not act in self-defence but was not satisfied that the offender was not acting under provocation. Mr Dailly SC for the offender contends that the offender was found guilty by the jury on the basis of provocation but with elements of self-defence and substantial impairment contributing. It was said that all these matters operate together to reduce the objective seriousness of the offence. 5 On the issue of self-defence, the Crown put to me that I would have some doubt accepting the offender's evidence that the deceased cut him with the knife. The Crown founded this submission on the evidence that was before the jury of the absence of blood spatter on the knife and of the re-arranging of the scene of the crime before the police arrived. The Crown was, however, content to proceed upon the basis that the deceased came at the offender with a knife. 6 When considering this issue, it is sufficient to commence with those events which occurred on 21 January 2008 upon the offender's return to his home at Baulkham Hills after having lunch with his daughter Vanessa and Mrs Clarke-Gabriel. During that lunch his daughter Emily's wedding had been discussed. The offender told the deceased that Emily's wedding was going to cost $5,000 and if he did not return to Australia for it he would invite Emily and her husband to Lebanon. An argument followed after which the offender went inside the garage to listen to the 2pm news on the radio. He heard that the Lebanese presidential election had been postponed. The offender then told his wife that he was not going to Lebanon as it was unsafe and he was happy in Australia. The significance of these conversations will be clarified when I come to consider the relationship between the offender and his wife. The deceased became angry calling him a liar and asking where was the house he had promised her in Lebanon. He decided to go for a walk but received a phone call from Vanessa who told him she was on her way over to his home. The phone records (exhibit O) indicate that this call was made at about 2.35pm 7 When Vanessa arrived and saw her father at the front door she noticed a cut across his head and a cut to his left hand. After Vanessa left, it was the offender's testimony that he went to the bathroom and cleaned his forehead to stop the bleeding. He then went back to the garage, turned the light on and saw the deceased on the ground with a lot of blood on her. He then rang Mr Eid, his solicitor, from the telephone next to the garage. The phone records establish that this call was made at 2.45pm. The only rational inference to be drawn from all the circumstances is that the violence between the offender and the deceased occurred shortly before Vanessa knocked on the front door. The cuts to the offender were to the forehead, left cheek and between the fingers of the left hand. These were minor injuries. Dr Langlois, a pathologist, told the jury that a typical defensive injury when a knife is involved is a cut between the fingers where the person being attacked has attempted to grab the knife. The pathologist did not find any defensive wounds on the deceased. The Crown did not prove beyond reasonable doubt that the cuts on the offender were self-inflicted. 8 The jury accepted that following the phone call between the offender and Vanessa, the deceased placed a kitchen knife to the offender's throat, telling him to put the house up for auction and to get the money that was owed by Mr Nassif. During the struggles which then followed in the house and in the garage, the offender was cut slightly by the knife and the wounds which I have described at [7] above were inflicted. As the offender thought that his wife was going to kill him, he grabbed something beside him which was the skutch hammer. The light was not on in the garage. He aimed it towards where the knife was in order to get it away from her. 9 Before proceeding further, it is apposite to consider an aspect of the evidence of Dr Pitham and Dr Langlois. Dr Pitham was the neurosurgeon who operated on the deceased at Westmead Hospital after she was brought in by ambulance at about 4pm. Dr Pitham testified that he observed the presence of seven very clear wounds of identical size in the deceased's scalp. They had penetrated the scalp in such a way that they were arranged in a line that passed from just above the right ear up and over the top of the head, crossing the midline and then slightly across to the left. Each one of these injuries was almost perfectly parallel with all of the other ones so that the effect was that they almost made a straight line over the top of the head. What was described by Dr Pitham as the seventh injury was on the left side of the skull just across from the other six wounds but completely parallel with them and in the same arc. Dr Pitham told the jury that this "was an exceptional case of extraordinary wounds that were arranged in such a precise fashion so that we all stood back, all of the people in the operating theatre who were involved in the case, marvelled at the precision of the wounds that were inflicted": T 254 L- 48 T 255 L -1. 10 Dr Pitham expressed the opinion that the pattern and the location of the seven wounds suggested that the deceased was lying on the ground and the offender must have been (whether standing, crouching, kneeling or sitting on a chair) in the same position whilst these wounds were being inflicted. 11 It seems to me that if all of what was said by Dr Pitham was accepted by the members of the jury, their verdict could neither have been manslaughter by self-defence nor by provocation. The verdict could only have been guilty of murder unless the partial defence of substantial impairment by abnormality of mind was established on the balance of probabilities by the offender. I conclude that the jury did not find that all of the seven blows were struck by the offender when his wife was lying on the ground and all seven were inflicted in an egregiously consistent pattern. 12 Dr Langlois, however, gave evidence of a depressed triangular area of fracture towards the left of the vertex of the skull which he described as wound number 2. The area of fracturing was 2.5 by 2 centimetres and was caused, in his opinion, not by surgical intervention but by some blunt object. I conclude that, notwithstanding the disadvantage that the pathologist had in conducting his examination after there had been significant surgical intervention, the jury must have accepted the evidence of Dr Langlois and found that wound no 2 was caused by the first blow struck by the offender. The jury was not satisfied beyond reasonable doubt that in striking this blow the offender had an intention to kill or to inflict grievous bodily harm. 13 The offender told the jury that he could not remember what happened after the first blow. The skutch hammer weighed 2.046kg and is a stonemason's tool. By the first blow the deceased was knocked to the garage floor severely injured and was rendered unconscious. The jury was satisfied beyond reasonable doubt that any danger to the offender from the deceased had passed after the first blow and the offender with that knowledge deliberately struck the deceased on the skull a further six times with the skutch hammer. For all of the blows, the deceased had been struck by the wedge of the skutch hammer. Dr Pitham told the jury that each of the seven wounds had an underlying skull fracture. Four of the fractures were minimally displaced and the other three fractures involved the skull being deeply displaced into the structure of the brain. All of the fractures, including those that were minimally displaced, involved penetration through the skull and all of them penetrated the brain to a greater or lesser extent. All of the blows required a similar very large amount of force in order to penetrate the skull. In three of the seven blows the wedge of the skutch hammer penetrated the brain all the way into its centre. I am satisfied beyond reasonable doubt that at the time he struck the further six blows, the offender had the intention to kill his wife. 14 The Crown established beyond reasonable doubt that, apart from the first blow, the offender did not believe that what he did was necessary to defend himself. The jury went on to consider whether the Crown had established that the offender was not acting under provocation. All of the jury's questions after the jury had retired to consider its verdict were confined to provocation which provides a clear indication of the importance that the members of the jury attached to this issue. Provocation 15 The offender was assessed by Dr Korbel a psychiatrist on 2 February 2008. Dr Korbel recorded that the offender claimed that he and the deceased argued about her wish to return to Lebanon, she assaulted him with a knife and he "lost it". On 13 June 2009 the offender told Dr Allnutt, a forensic psychiatrist, that "he could recall hitting [the deceased] once or twice, he thought he must have "lost it" but was unable to remember clearly; she fell to the ground." It was the offender's case at trial that the six blows to the deceased were the result of a loss of self-control that was induced by the deceased's conduct towards him over the years. The triggering events for the loss of self-control were said to be the attack upon him by the deceased with the knife and the argument which immediately preceded it. I turn now to consider the relationship between the deceased and the offender. The relationship between the deceased and the offender 16 The offender was born in Lebanon where he attended school to the age of about 14 years and then in the tradition of his family became a stonemason. When he was 20 years old, he migrated to Australia and settled in Sydney. The offender built up a successful business as a stonemason. He married Heather Clarke and there were three children of the marriage. Mrs Clarke-Gabriel and the offender divorced in 1994. 17 Whilst in Lebanon in November 2000, the offender was introduced to the deceased who was a widow with two adult children. They married on 30 November 2000. At the time of the marriage, the offender owned a house at xxxxxxx and a rural property in Oberon. The offender was 55 years old and the deceased 39 years old. The deceased remained in Lebanon until she obtained a visa to come to Australia on 12 September 2003. 18 The marriage between the offender and the deceased was beset with arguments between them and periods of separation after she arrived in Sydney and commenced living with the offender at xxxxxxx. 19 There were relatives and friends of the deceased who gave evidence in the Crown case about the relationship between the offender and the deceased. Much of this testimony concerned conversations with the deceased and the offender between 2004 and the beginning of 2006 on occasions when the deceased had left him. The Crown in particular pointed to a conversation between George Esber, the deceased's cousin, and the offender at a meeting in 2006 when the differences between the offender and the deceased were discussed. Mr Esber recounted that the offender told the deceased that he had "brought [her] here as a maid, not as a wife". Mouna Azizi, another cousin of the deceased, gave evidence of a conversation with the deceased in 2005 during which the deceased had related that the offender thought that she was his maid. The Crown submitted that the offender was quite detached from the deceased and had no feelings about her as his equal or his wife. 20 The difficulty with this submission was that after those conversations much had transpired between the offender and the deceased. The property xxxxxxx had been sold in July 2006 to enable a house to be built on a block of land which had been purchased in Lebanon and the offender had agreed to live with his wife in that country. Erin Van Ryswyk, the offender's neighbour, recalled a conversation with the offender about six months prior to the commission of the offence in which he said that "the [deceased] wants to go back to Lebanon as all her family are there". Mrs Clarke-Gabriel and Vanessa had been told at the lunch on 21 January 2008 by the offender that he was moving to Lebanon and might not be able to attend Emily's wedding. The rejection of the Crown's submission does not mean that I have accepted all of the offender's testimony of his marital relationship. It is evident that there was an element of jealousy and possessiveness in the offender's attitude towards his wife which I have no doubt contributed to the unhappiness in the marriage. 21 The jury accepted the offender's evidence that whilst he was arguing with his wife in the lounge room on 21 January 2008 immediately before the attack by her upon him with the knife that he was thinking that she just wanted his money and his children's money as well, that she had been unfaithful to him and did not love him. 22 There were in particular four occasions which founded the offender's belief of his wife's infidelity. The first occasion was when the offender was in Lebanon between August and November 2002 and George Esber, the deceased's cousin, drove past in a Mercedes 500. The deceased told him that Mr Esber had slept overnight in her flat on the sofa. The second was when he became aware that the deceased was wearing an IUD even though she knew that he had had a vasectomy on 11 January 2002. On the third occasion, the deceased told him that she had slept with xxxxxxx in about March 2005. The fourth occasion happened in September 2007 when he returned to his home after he had been in hospital for about 10 days. He saw a man leaving the premises at the front gate and the window screens of the deceased's bedroom were torn and had fallen down. 23 I hasten to add that Nahla Makdissi gave evidence of the deceased telling the offender in about mid 2005 that she had never cheated on him and he was "making up these stories." What is of relevance, however, is the offender's belief of her infidelity which is supported by his consultations in 2007 with Dr Benjamin, a psychiatrist. In a letter to Dr Azizi, the offender's general practitioner, Dr Benjamin wrote that the offender believed his second wife was unfaithful to him. 24 There were arguments between the offender and the deceased about money which had started around six to eight months after her arrival in Australia when she wanted money for her son in Lebanon. She had pressured the offender to sell the Oberon property. He had used the settlement monies from that sale to build the house at xxxxxxxx against his wife's wishes. Another argument concerned the purchase of a Holden Kingswood which was lent to the offender's son and the deceased's requests for money for the vehicle. There were negotiations between the offender and the deceased when they separated in December 2004 concerning her share of the assets if she was to return to him. The offender's testimony that at this time he believed she had come to Australia to get half his assets was supported by the letter dated 16 February 2005 to Wendy Parkinson at the Department of Immigration which the offender had dictated to Mrs Clarke-Gabriel. 25 The offender and the deceased travelled to Lebanon in September 2005. Whilst in Lebanon, they agreed to buy a block of land and to build a house on it for them to stay in whenever they visited and for the deceased's parents to live in permanently. It was the deceased's idea to fund the building of the house in Lebanon by the sale of xxxxxxx which was sold in July 2006 for $300,000. The deceased had discussed with him selling both houses and moving everything to Lebanon which he refused to do. It was the offender's intention to rent xxxxxxxxx when they moved to Lebanon and to eventually leave it to his children. His wife could have the house in Lebanon and she was happy at that time with this arrangement. They, however, could not travel to Lebanon in July 2006 as there was fighting between Israel and Hezbollah. 26 The deceased introduced the offender to Steve Nassif a builder. In August 2006 the offender agreed to lend Mr Nassif $300,000 for six months after which Mr Nassif would pay him $330,000. Another arrangement was entered into with Mr Nassif. The offender agreed to build a house in sandstone for him for $50,000. The deceased also agreed to help Mrs Nassif for four months for which she was to be paid $8,000. It was the intention of the offender and the deceased to go to Lebanon when this money was paid by Mr Nassif. Unfortunately, Mr Nassif failed to make any payment in February 2007. The offender agreed to extend the repayment by Mr Nassif for a further six months for which he was to receive an additional six months interest. The deceased was upset about the monies that were owed by Mr Nassif and they argued about it. 27 As they were arguing a lot and the offender was feeling depressed, he consulted Dr Benjamin. Dr Benjamin was of the opinion that the offender might be suffering with a delusional disorder (jealous type) and a secondary depressive disorder with a differential diagnosis of major depressive disorder with psychotic features. He prescribed Zoloft, an anti-depressant medication, in combination with a low dose of anti-psychotic medication. When the offender saw Dr Benjamin on 18 April 2007, the daily dosage of the anti-psychotic medication was increased. The dosages of the medications were maintained after the offender's visits to Dr Benjamin in May and August 2007. Regrettably, the offender's compliance with taking the medication prescribed by the psychiatrist was unreliable. He stopped taking Zoloft about a month before the offence and had not taken the anti-psychotic medication for some time before that. 28 Mr Nassif repaid $330,000 in August 2007 which the offender, on legal advice, accepted as a compromise for all of the monies that Mr Nassif owed. He was not paid for his stonemason's work nor the additional six months interest. The deceased was not paid the money which was owed to her. As the deceased nagged him about the money which she had not been paid by Mr Nassif the offender gave her a cheque for $8,000. The deceased did not accept that nothing could be done about the balance of the money owed by Mr Nassif. It caused further arguments between them. 29 The deceased pressed the offender to sell xxxxxxx and not to leave any assets in Australia. The offender told her that was unfair to his children and he would never sell the house as they were going to live off the rent whilst in Lebanon. The deceased did not accept this arrangement. 30 They had not left Australia at the end of 2007 as the offender was waiting for the election of the President of Lebanon which had been postponed until 21 January 2008. The offender was not going to move to Lebanon if it was controlled by Hezbollah. The deceased, however, was anxious to return to Lebanon. 31 On 20 January 2008 there was an argument over the money that had not been paid by Mr Nassif. It was the offender's evidence that the deceased wanted him to threaten to kill Mr and Mrs Nassif in order to get the unpaid money off them and, if he did not want to use a weapon, she would. The offender kept a registered shotgun in a safe in the main bedroom. Whilst I accept that the deceased was upset over the failure by Mr Nassif to pay all of the money, I neither accept that she told the offender that she would use a weapon if he did not nor do I accept that she told him to show her how to use it. In any event, the offender had the only key to the safe and the deceased did not drive a motor vehicle. Nevertheless, I accept that the deceased taunted the offender about his inability to recover all of the money from Mr Nassif. At this time, the offender felt very angry and depressed as he considered that he had gone out of his way to please his wife. He believed that she had been unfaithful to him and that all she wanted was his money. 32 There was another argument between the deceased and the offender on the morning of 21 January 2008. The offender told the jury that before he went to lunch, he drank a [glass] of scotch and took a tablet of Librium. Librium, he said, was his wife's medication which had been purchased from a chemist in Lebanon and he took the Librium that morning to help him to relax because of his upset following the argument with his wife. 33 No mention was made by the offender that he had taken Librium when he was asked questions by Sergeant Woodbury, the custody manager, at the Castle Hill police station after he had been taken into custody on the day of the offence. There is no reference to Librium in the histories recorded by Dr Allnutt and by Dr John McMahon, a psychologist. When the offender was interviewed by Dr Olav Nielssen, a forensic psychiatrist, on 8 May 2009 the offender said "that he might have taken a tablet of Librium, an anti-anxiety medication prescribed for his wife". I am not satisfied on the balance of probabilities that the offender did in fact take Librium that morning. 34 The offender testified that he had asked the deceased if she would like to join his daughter and ex-wife at lunch but she had replied that she was not going with him but wished to be taken to the Castle Hill RSL Club. According to the offender, he dissuaded her from going there as he thought his wife would be playing poker machines. What was said by the offender does not sit happily with Vanessa's evidence that during the lunch her father had told her that his wife had wanted to come to the lunch and he believed that she might be upset with him when he got home. Vanessa impressed me as an honest and reliable witness and I do not think that she was mistaken in her recollection of the conversation. I do not accept that the offender invited the deceased to the lunch. It is necessary to consider the psychiatric and psychological evidence which bears upon the issue of provocation before proceeding further. The psychiatric and psychological evidence 35 I have recounted at [27] above, the diagnosis of Dr Benjamin who was the offender's treating psychiatrist in 2007. 36 Dr Allnutt was of the opinion that the offender at the time of the offence had a fronto-temporal dementia and was suffering depression. He said that developing dementia could contribute to the offender's thinking being more rigid, leading to pre-occupation and over-focussing which could feed into his emotional state. Dr Allnutt considered that because of the offender's dementia and depression he was more vulnerable to losing self-control and to over-reacting. 37 During the trial Dr Allnutt gave the following evidence T 996 L 23-31: "Q. Are you saying, doctor, that his depression and dementia likely had an impact on his capacity for self-control in the situation that he told you of occurred on 21 January 2008? A. I think that he would have been more vulnerable to losing control earlier if levels of stress increased than a person without dementia or depression. In that sense I believe that considering the circumstances being a very high stress situation, if you accept his account that she was coming at him with a knife and there was a big argument, that in that context I would answer that question yes on that basis". 38 Dr Olav Nielssen made three diagnoses. The first was that the offender had a depressive illness which he thought was in remission at the time of the interview as a result of treatment since the offender had been in custody. The second was a possible delusional disorder and the third was probable early dementia. 39 Dr Nielssen opined that the diagnosis of early dementia was likely to have resulted in impairment in the offender's capacity to control his actions because dementia, particularly dementia affecting the frontal lobes of the brain, is associated with increased impulsivity and decreased logical thinking. Dr Nielssen considered that being in a depressed state, the offender would "… see things as being worse than they are and look at the future in a catastrophic kind of way and hence you would expect his depressive condition to increase the level of hurt that he might have experienced": T 1081 L 30-34. 40 Dr John McMahon, a psychologist, carried out various tests on the offender, including testing of the frontal lobe of the brain, which demonstrated impairment in a number of sub-scales consistent with impaired planning, judgment and conceptualisation. An MRI, which was conducted on 20 July 2009 showed a number of foci in the white matter on both sides of the offender's brain. Dr McMahon said that this was evidence of a disease process within the brain of some description. The psychologist concluded that the offender had fronto-temporal dementia and a major depressive disorder. He opined that a person suffering from dementia when confronted with an unexpected event would have less capacity to come up with novel solutions and less capacity to talk down an emotional reaction to the situation. As he was not able to reason through it, his self-control was impaired. His capacity for self-control reduced as his stress levels rose. 41 I accept on the balance of probabilities that at the time of the commission of the offence the offender had early fronto-temporal dementia and was suffering depression. His depression increased the level of hurt that he experienced over the years as a result of the conduct of the deceased towards him. His belief was that his wife wanted all of his money, that she had been unfaithful to him and did not love him. The offender's dementia and depression reduced to some degree his capacity for self-control. The immediate trigger for his loss of self-control was the attack by the deceased upon him with the knife. 42 The Crown submitted that the loss of self-control induced by the provocation was of short duration. The Crown argued that thereafter the offender pursued a course of methodical penetrating blows to the head with the skutch hammer which was not committed in a frenzy but was calculated. The Crown cited R v Vella (NSWCCA 15 December 1995, unreported) at p 10 and p 15. 43 The circumstances of this case are different to those in Vella where Mr Vella pursued a long course of methodical bashing which went on for at least a quarter of an hour and the victim was pleading for mercy between the blows: see Vella at p 10. As I have recognized at [7] above all of the struggle between the offender and his wife could not have lasted more than about ten minutes. 44 In the present case, the jury must have found that notwithstanding the extraordinary precision of the six blows that were struck whilst the deceased was on the ground, all six blows were the result of a loss of self-control on the part of the offender that was induced by the deceased's conduct. A finding that the blows that followed the second blow [the first blow to the deceased who was then on the ground] was not the result of a loss of self-control must necessarily have resulted in a verdict of murder. In any event, I am unable to conclude beyond reasonable doubt in light of the jury's verdict that any of the six blows were not as a result of loss of self-control induced by provocation. 45 The jury considered that it was a reasonable possibility that the conduct of the deceased was such that it could have induced an ordinary person in the position of the offender to have so far lost self-control as to have formed an intention to kill or to inflict really serious physical injury upon the deceased. The Crown did not prove beyond reasonable doubt that the offender was not acting under provocation when he killed his wife. Substantial impairment by abnormality of mind 46 Although the offender was found guilty of manslaughter on the basis of provocation, it is necessary to consider whether the offender has established more probably than not that at the time of the offence he was substantially impaired by reason of an abnormality of mind. Where both provocation and substantial impairment are present, they can operate together to reduce the objective seriousness of the offence: see R v Low (1991) 57 A Crim R 8; R v Ko [2000] NSWSC 1130. It was not the offender's case that his capacity to judge whether his actions were right or wrong was substantially impaired. His capacity either to understand events or to control himself at the time of the acts causing death was said to have been substantially impaired by an abnormality of mind arising from an underlying condition. It was put to me on behalf of the offender that there was no difference between the opinions of the psychiatrists. I do not agree with that submission. 47 Dr Nielssen was of the opinion that the offender's disorders namely depressive illness, possible delusional disorder and probable early dementia were "an underlying condition within the meaning of s 23A of the Crimes Act". He stated (report 11 August 2009 p 8): "His underlying condition is likely to have given rise to an abnormality of mind at the time of the offence, during which he experienced significant impairment in his perception of the events and his capacity to control his actions. His impairment in the perception of events took the form of his belief that he was in danger from his wife because she wanted his money. The impairment in his capacity to control his actions was due to the combination of his perception of threat from his wife and impaired impulse control arising from frontal lobe dementia." 48 In cross-examination during the trial, Dr Nielssen gave the following evidence (T 1082 L 15-27): "Q. In the last paragraph of your report, do you have it there, page 8? A. Yes. Q. My friend took you through that or you read through it. You refer to the impairment as being significant impairment? A. Yes. Q. When you were led through that you may have used the word substantial but did you mean significant impairment in the way that it's set out in that last paragraph? A. Yes, I was referring to the defence of substantial impairment but my assessment of the level of impairment based on the diagnosis I have made and the effects of those conditions was that it would have been significant." 49 The diagnosis of possible delusional disorder by Dr Nielssen was made on the basis of the history by the offender that the deceased had affairs in Lebanon and after she arrived in Australia and the diagnosis of Dr Benjamin. Dr Nielssen acknowledged that an alternative explanation was that the offender's beliefs were based on real events and the basis of the beliefs might not be delusional. He had not obtained enough detail to confirm whether that might have been the case. 50 On the diagnosis of probable early dementia, Dr Nielssen's testimony included the following T 1095 L 11- 42: "Q. In relation to number 3, which is the probable early dementia, you, am I right, qualify this diagnosis of dementia in two ways: firstly, as early dementia; and, secondly, as probable. Is that a fair statement? A. Yes. Q. And by early dementia can one understand there is, let's say, advanced dementia or severe dementia? A. Firstly, Mr Gabriel is a young man, he's young to have this kind of disorder. Only 5 per cent of people aged 65 have some evidence of dementia. The diagnosis of a condition like that, it is quite a serious diagnosis, will depend on the amount of disability that it created. In Mr Gabriel's case I'm quite sure that he has an early dementing process, but it is not so severe, for example, that it severely affects his memory function. It mainly affects his executive functions, his frontal lobe functions at this stage. Q. And you say I think in your opinion, last paragraph, if I can invite you to look at that at the bottom of page 7, that the diagnosis of probable early dementia is based on Mr Gabriel's performance during the recent interview when he was disorganised in his speech and had difficulty retrieving specific information. Do you see that? A. Yes. Q. Am I right in understanding you didn't observe him in court last week over a period of a couple of days giving evidence? A. No, I didn't, but I read the transcript. I must say, it was much more concise than was certainly my experience at the initial interview. Q. In any event, as you say there, your diagnosis was based on his performance during the interview when you saw him and you go on to say that the diagnosis is supported or the clinical impression is supported by the neuropsychological testing? A. Yes." 51 From my observation of the offender, he did not demonstrate during his evidence disorganization of speech or loss of memory function. What he told the jury was markedly coherent. Any lack of recollection was confined to what occurred after he had struck the first blow. The psychiatrists and the psychologist told the jury that such a lack of recollection can occur in very traumatic cases such as the present. Dr Allnutt referred to "social amnesia" where a person defends against remembering the traumatic event. 52 Dr Allnutt opined that there were reasonable grounds "to be of the view that at the material time the alleged offence occurred [the offender] manifested an underlying condition with an abnormality of mind." On the issue of substantial impairment the views expressed by Dr Allnutt included the following: "… his description of the alleged offence suggests that he was impaired but not substantially in his capacity to understand events, that is, that his reasons for holding the belief that his wife was unfaithful and had designs on his personal assets was based in my opinion on understandable premises and interpretation of her behaviours and the nature of interactions that they had had but were probably exaggerated in his own mind. If he is regarded as having delusions of infidelity at the time then he would be regarded as significantly compromised in his ability to understand events but only in relation to his wife's fidelity and her de[s]igns on his assets. Delusions as well as overvalued ideas impair understanding in specific ways not generally. I would not regard him as significantly impaired [in] his capacity to interpret and understand events in this interaction with his wife at the material time of the alleged offence. … He had in my opinion, capacity to control his actions in that I do not believe his depression nor dementia was of such a severity or nature that he lost that capacity to a significant degree; your client's account is that he believed that his life was under threat and that he acted in a manner to defend himself and protect his life." 53 Dr Allnutt was of the opinion that the offender did not have a delusional disorder. The offender's beliefs about his wife's infidelity and being used by her in the marriage to get at his money were based on information that the offender provided to him which seemed to Dr Allnutt to be reasonable for his beliefs. He recognized that a decision whether a belief was delusional is difficult especially when talking about beliefs of infidelity. The offender's evidence during the trial supported Dr Allnutt's opinion that his beliefs were not delusional. I am not satisfied on the balance of probabilities the offender had a delusional disorder. I accept, however, Dr Allnutt's opinion that whether the offender's beliefs were delusional or rationally based, the emotional impact was the same. He had early fronto-temporal dementia and depression which are underlying conditions. 54 Ultimately neither of the psychiatrists expressed the opinion that the offender's capacity either to understand events or to control himself at the time of the offence was substantially impaired. Dr Nielssen considered the offender's impairment was significant whereas Dr Allnutt did not regard him as being impaired to such a degree. There is little in the evidence which demonstrates that notwithstanding his beliefs and the arguments with his wife, the offender had difficulty with the capacity to control himself prior to the attack upon him with the knife. The telephone call made by the offender to his solicitor very shortly after the commission of the offence provides support for Dr Allnutt's opinion that the offender's capacity to understand events was not significantly impaired. 55 I prefer Dr Allnutt's opinion as to the degree of the offender's impairment. 56 Whilst I accept that there was some impairment in the offender's capacity to understand events and to control himself by an abnormality of mind arising from the underlying conditions of early fronto-temporal dementia and depression, I am not satisfied that it was more likely than not that at the time of the offence he was substantially impaired. Further findings of fact 57 The Crown submitted that I should find that the offender, after inflicting the injuries, and where it was apparent that the deceased was alive, repositioned her body, did not call for an ambulance, did not render assistance to her and ignored any prospect that the deceased's life could be saved. 58 I find beyond reasonable doubt that the offender did interfere with the scene of the crime at some time between the telephone call to his solicitor and the arrival of police officers Williams and Smith at the home at 3.20pm. The only rational inference to be drawn from the deceased's injuries and the spatter staining on the garage floor is that the six blows were struck whilst her head was on the floor in the vicinity of where the skutch hammer was found by the police officers. I am satisfied from the swipe pattern leading from where the hair was located on the floor towards the area of clotted blood and the deceased's position when seen by the police officers that the offender moved his wife north to where the clotted blood and vomit were located. 59 I accept Detective Sergeant Gibbs's opinion that the absence of blood spatter on the knife indicated that it would not have been in the position that it was found by police at the time the spatter was occurring. I am not satisfied beyond reasonable doubt that the offender moved the knife to that position. The Crown did not submit during the proceedings on sentence nor am I satisfied beyond reasonable doubt that the offender interfered with the scene in an attempt to cover up his crime. 60 As to the Crown's contention that the offender did not call an ambulance and render assistance to the deceased, the offender told the jury that when Vanessa was at the front door he said to her "please go and get help. Please ring the ambulance." He testified that he rang Castle Hill police station and was speaking to someone at the station when he heard police at the front door. He then hung the telephone up and spoke to them. However, Vanessa's testimony of the conversation did not include her father asking her to ring an ambulance. She recounted that he said to her "Just get help, just go, just get help, just leave, Ness, get help". On neither version of the conversation did the offender tell his daughter that the deceased was seriously injured or injured at all. The phone records (exhibit O) do not disclose that a telephone call was made to Castle Hill police station. Constable Smith testified that when he was near the front door he heard a male voice inside the house say "police please." He called out loudly "Police" and heard a plastic clicking noise that sounded like a telephone being hung up. The offender then came to the front door. 61 I do not accept that the offender asked his daughter to ring an ambulance. In any event, it was open to him to do so himself. The telephone call to his solicitor shortly after Vanessa left, the offender said, was not about triple 0. He had returned to the garage and turned on the light prior to making that call. He had seen his wife on the ground with blood on her. It would have been evident that she was alive. When Constable Smith saw the deceased, he described hearing her "taking deep, rasping breaths" and whilst she did so "her back was rising and falling, heaving up and down". Whilst the offender may have attempted to speak to police at Castle Hill police station, such an attempt was not made until about 3.20pm. I conclude that the offender's conduct demonstrated self-interest and remarkable indifference to obtaining help for his wife. 62 As in all offences of manslaughter the starting point in the present sentencing exercise is that the life of Wadad Isber aged 46 years has been unlawfully taken: see R v Blacklidge (NSWCCA 12 December 1995, unreported). The crime of manslaughter involves the felonious taking of human life and has always been recognised by the law as a most serious crime: R v MacDonald (NSWCCA 12 December 1995, unreported). The maximum sentence for the crime of manslaughter is 25 years imprisonment. 63 The degree of provocation offered to the offender cumulatively over the years by the deceased was not to my mind of a high order. The offender's underlying conditions, however, increased his negative perception of his wife's conduct and the hurt that he experienced. The provocation was materially heightened when the deceased placed the knife to the offender's throat. This was followed shortly thereafter by the loss of self-control. Tragically but for the introduction of the knife into the argument, the manslaughter would not have occurred. These are considerations, in my opinion, which reduce the objective gravity of the offence: R v Alexander (1994) 78 A Crim R 141 at 144. 64 The offender ferociously struck his wife six times with the skutch hammer to the head whilst she lay unconscious on the ground. He intended to kill her. Dr Pitham was of the opinion that each of the three blows that penetrated the brain all the way into its centre would likely to have been fatal. Of the remaining four blows that penetrated the skull but did not enter the deep substance of the brain, Dr Pitham said it was probable that the patient would have survived if one of those injuries had happened in isolation but each such injury would have caused a substantial degree of brain damage. No medical intervention, he said, could have saved the deceased even though she survived for seven days. The degree of violence displayed by the offender was extreme. These are considerations which, in my opinion, increase the objective seriousness of the offence: Alexander; R v KMB [2005] NSWCCA 185 at [11]. 65 The Crown invites me to find that an aggravating factor was the use of a weapon: s 21A(2)(c) Crimes (Sentencing Procedure) Act. Mr Dailly on the other hand submits that the skutch hammer was not a weapon obtained by the offender in order to commit the offence but was picked up by him in self-defence. Whilst that is so, the offender continued to use the weapon after the need for self-defence had passed. The use of the skutch hammer, an awful implement, in the infliction of the six blows is a factor of aggravation. 66 Another factor of aggravation the Crown put to me was the commission of the offence in the home of the victim: s 21A(eb) Crimes (Sentencing Procedure) Act. Mr Dailly argued that because the deceased created the violent and threatening situation in her home, this factor of aggravation should not be found. With this submission I agree. Section 21A(eb) was introduced to preserve the notion of sanctity of the home. Sadly, the deceased's reasonable expectation of safety and security in the matrimonial home was displaced when she introduced the knife. In the present case, I do not consider that this aggravating factor applies. 67 As I have found at [41] above, the offender had early fronto-temporal dementia and was suffering depression at the time of the commission of the offence. In addition to increasing the offender's negative perceptions and level of hurt, I am satisfied on the balance of probabilities that these conditions to a limited degree reduced his capacity for self-control when the deceased attacked him with the knife. The offender's moral culpability for his offending is diminished by reason of his dementia and depression and the objective seriousness of the offence is mitigated by the presence of these conditions: s 21A(3)(j) Crimes (Sentencing Procedure) Act; R v Hemsley [2004] NSWCCA 228 at [33] – [36], R v Israil [2002] NSWCCA 255 at [23]. 68 It is a factor in mitigation that the offence was neither premeditated nor planned: s 21A(3)(b) Crimes (Sentencing Procedure) Act. 69 The offender was born on 11 February 1945 and is almost 65 years old. At the time of the offence, he was 62 years old. He does not have any prior criminal convictions which entitles him to leniency: s 21A(3)(e) Crimes (Sentencing Procedure) Act. The offender did not give evidence during the proceedings on sentence. I have summarised the offender's personal circumstances at [16-17] above. A character testimonial by Joseph Saad the offender's nephew refers to the offender as being "an extremely hard working family man with deep Christian convictions". Morris Saad makes reference to the offender working "extremely hard". I accept that the offender has been a hard worker all his life which is demonstrated by the successful business which he established in Sydney as a stonemason. I find that prior to the manslaughter, the offender was a person of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act. 70 A mitigating factor to be taken into account in determining an appropriate sentence is the remorse shown by the offender for the offence. Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act provides that remorse may only be taken into account if: "(i) the offender has provided evidence that he …has accepted responsibility for his … actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his …actions or made reparation for such injury, loss or damage (or both)". 71 The offender has by his plea of guilty to manslaughter accepted responsibility for his actions and the plea is an indication of his remorse and contrition. The Crown case on manslaughter was, however, very strong. His plea of guilty was, in my opinion, a recognition of the inevitable. The strength of the Crown case, I emphasise, is relevant only to the evaluation of remorse: R v Sutton [2004] NSWCCA at [12]. 72 A troublesome feature in assessing whether the offender is remorseful is the indifference to his wife which he displayed between the commission of the offence and the arrival of police. During submissions on sentence, Mr Dailly pointed to the offender's testimony during the trial that he loved his wife and still did as demonstrating remorse. The offender's commitment to her was demonstrated by the agreement to purchase a house in Lebanon and to live there and by the payment of significant amounts of money. Notwithstanding, that evidence by itself does not fulfil the requirements of s 21A(3)(i)(i)-(ii). Morris Saad, however, writes in his character testimonial that he has visited the offender regularly during his time in custody. He states: "Harb and I have had long chats about his life after the incident. I can honestly say that on each occasion we have spoken since this incident, Harb has expressed his sincere regret and deep remorse for the incident. Harb "tells me that he misses Wadad and that all he ever wanted was to live with her in a happy peaceful environment…" Joseph Saad refers to the offender often speaking to him about missing the deceased and "how he was willing to give up everything for her, and how he would do anything to have her back." 73 I am satisfied on the balance of probabilities that the offender has accepted responsibility for his actions and has acknowledged the loss that he has caused. I am satisfied that he is remorseful for his offending. 74 I conclude on the balance of probabilities that he is unlikely to re-offend and has good prospects of rehabilitation: s 21A(3)(g)-(h) Crimes (Sentencing Procedure) Act. 75 Such a manslaughter in a domestic setting would usually call for a strong element of general deterrence in the sentence. But in this case, the part played by the offender's depression and dementia in the commission of the offence diminishes the weight to be given to this factor. I do not overlook the offender's failure to take the medication for his depression which was prescribed by Dr Benjamin. I do not consider, however, that this is a case where the failure to take prescribed medication reduces – if not eradicates - the mitigation which would otherwise be given for a mental condition: see R v Wright (1997) 93 A Crim R 48 at 52. The offender's depression and dementia render him to be an inappropriate medium for general deterrence and I give little weight to this factor: Hemsley; R v Engert (1995) 84 A Crim R 67 at 71. The Crown does not suggest nor do I find that there is any risk of future dangerousness which increases the need for protection of the public. 76 I take into account the offender's age and state of health. The offender gave evidence of experiencing hallucinations of voices and of the medication he takes for depression, for an ulcer and for [high] cholesterol. It appears, however, that the offender's depressive illness is in remission as a result of treatment with anti-depressant medication. Whilst there is a risk of further episodes of depression, adequate treatment is available to him in custody. 77 A difficult question is the probable course of the offender's dementia. In a report dated 18 November 2009, Dr Nielssen states that "the prognosis of Mr Gabriel's dementia, which is probably a form of vascular dementia is less certain." Dementia is an irreversible and progressive condition and Dr Nielssen observes that "it is unusual not to have progressed to needing care within a few years of diagnosis. A recent estimate of the median survival after the diagnosis of vascular dementia is 3.3 years." 78 Neither Dr Allnutt nor Dr McMahon diagnosed probable vascular dementia. Dr McMahon was of the opinion that the offender's dementia "had its onset in the early nineteen nineties". In a report dated 24 June 2009, Dr McMahon states at p 22: " In the mid to long term, that is beyond 3 to 5 years, he will most probably require increased structure and support to meet activities of daily living. Fronto-temporal dementias typically have a rapid course of decline in the later stages, and in the long term beyond 8 to 10 years he will likely require significant support to meet his activities of daily living." 79 The offender, it seems, has not been referred to a gerontologist. No formal diagnosis of vascular dementia has been made. On the present state of the evidence, I am unable to conclude on the balance of probabilities that the offender has vascular dementia. 80 When considering the probable rate of the offender's cognitive loss, I am mindful that the offender's testimony during the trial neither reflected disorganisation of speech nor loss of memory function. I note that when the offender was further interviewed by Dr Nielssen, the psychiatrist considered that the offender "was able to answer the additional questions put to him in a succinct way, when compared to his performance conducted earlier in the year." 81 It is not possible to determine what will be the rate of decline in his cognitive abilities. Nevertheless, I accept that his dementia will progress so that he will eventually require significant support. Dr Nielssen recounted that the New South Wales prison system does not currently have facilities that can provide such a level of care. Whilst it is not presently the case that the dementia and depression renders imprisonment more burdensome to the offender than for the average prisoner, I take into account that the burden will increase during any journey of cognitive decline: Hemsley; Israil at [26]. This is a special circumstance justifying a departure from the statutory proportion between the non-parole period and the balance of term. A special circumstance is his first time in custody at the age of 62 years. 82 Various cases were cited by counsel during submissions. One of the cases to which my attention was drawn by Mr Dailly was R v Zeilaa [2009] NSWSC 532. In that case the term of the non-parole period set by Howie J was 2 years 6 months. Senior Counsel submits that a non-parole period of between 2 and 3 years would be an appropriate sentence in the present case. A distinguishing feature of Zeilaa is that it was accepted that Mr Zeilaa was substantially impaired due to the effects of dementia. The sentencing judge stressed at [22] – [23] that the sentence was "a very peculiar sentence imposed in circumstances of a very unusual case." The non-parole period put to me by Mr Dailly would not, to my mind, adequately reflect the objective seriousness of the offence. However, the cases cited by counsel and the sentencing statistics provided to me have been of assistance in determining the appropriate sentence. Each case depends on its own facts. 83 Although mitigated by the considerations of self-defence, provocation, the underlying conditions and subjective circumstances which I have detailed, the taking by the offender of his wife's life is a serious crime. She suffered a horrible death. 84 The plea of guilty to manslaughter was entered when the offender was arraigned on 29 September 2009, the date on which the trial had originally been listed to commence. It had been anticipated that pre-trial issues would be raised and a jury panel was not required until 6 October 2009. On that day, the offender pleaded not guilty to murder but guilty to manslaughter in the presence of the jury panel which plea the Crown did not accept in full discharge of the indictment. Mr Dailly submits that the offender should receive a substantial discount for his plea. The offender's plea which was rejected by the Crown is consistent with the jury verdict. If the plea had been accepted, its utilitarian value would, in my opinion, have been limited as it came at a late stage. Mr Dailly referred to difficulties in obtaining instructions because of the offender's dementia. It seems, however, that it was never really in issue that the offender would plead guilty to manslaughter in some form yet an indication of such a plea was not provided to the Crown until shortly before it was entered. I have difficulty understanding how in the case of this offender, his dementia prohibited such an indication being given. The court history (exhibit B) details what had occurred in the proceedings before the plea was entered. I do not consider, in the present case, the reasons advanced for the delay in the plea as a matter of fairness impact upon the assessment of its utilitarian value: R v Borkowski [2009] NSWCCA 102; R v Zeilaa at [18]. The offender is entitled to a discount for the utilitarian effect of his plea of 10 per cent. 85 Mr Dailly submitted that the sentence should be mitigated by reason of "extra-curial punishment" as the deceased was a prominent figure in his life and in his plans for a life in retirement. It is submitted that, now his wife is gone, there is little left for him to look forward to. I reject this submission. This is not a case where there is a loss or detriment imposed on the offender by persons other than this court for the purpose of punishing him for his crime: Silvano v R (2008) 184 A Crim 593. What is said to be the offender's loss is an inevitable consequence of his having committed the offence. I give no weight in the present circumstances to extra curial punishment. 86 A victim impact statement written by Nahla Makdissi at the request of members of the deceased's family was tendered. The contents of the statement cannot be used by me to increase the offender's sentence: R v Previtera (1997) 94 A Crim R 76. I acknowledge the grief and distress of the deceased's family and express on the community's behalf its sympathy and compassion for them. 87 There is no alternative to a full time term of imprisonment being imposed. The offender has been in custody since 21 January 2008. Accordingly, the sentence will commence on that date. 88 I consider that the appropriate undiscounted starting point of the sentence is 10 years 4 months. The term of the sentence is reduced by 10 per cent for the utilitarian effect of the plea to 9 years 3 months (rounded down). Special circumstances have been found. 89 Harb Gabriel, I convict you. I sentence you to imprisonment with a non-parole period of 6 years 3 months which is to commence on 21 January 2008 and is to expire on 20 April 2014. I set a balance of term of 3 years which is to commence on 21 April 2014 and will expire on 20 April 2017. 90 You will be eligible to be released to parole on 20 April 2014. ********** 19/02/2010 - typographical error - Paragraph(s) * 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.