New South Wales Supreme Court CITATION : R v Sullivan [2010] NSWSC 755 HEARING DATE(S) : 17 Dec 2009; 3 Jun 2010 JUDGMENT DATE : 9 July 2010 JUDGMENT OF : Fullerton J DECISION : Sentenced to imprisonment for 25 years comprised of a non-parole period of 18 years and 9 months commencing on 7 October 2007 and expiring on 6 July 2026 with a balance of term of 6 years and 3 months commencing on 7 April 2026 and expiring on 6 October 2032. CATCHWORDS : CRIMINAL LAW - sentence - murder - whether causal link between offender's brain damage and offending - level of objective seriousness - significance of previous criminal record Crimes Act 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 CATEGORY : Sentence Apps v R [2006] NSWCCA 290 Aslett v R [2006] NSWCCA 360 Collon v R [2009] NSWCCA 187 Maxwell v R [2007] NSWCCA 304; 177 A Crim R 498 Mencarious v R [2008] NSWCCA 237; 189 A Crim R 219 Perry v R [2006] NSWCCA 351; 166 A Crim R 383 CASES CITED : R v Hemsley [2004] NSWCCA 228 R v McEvoy [2010] NSWCCA 110 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 R v Slater [2001] NSWCCA 65; 121 A Crim R 369 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Veen v R (No 2) [1988] HCA 14; 164 CLR 465 at 477 Versluys v R [2008] NSWCCA 76 Yun v R [2008] NSWCCA 114; 185 A Crim R 58 PARTIES : The Crown Anthony Ramon Sullivan (Offender) FILE NUMBER(S) : SC 2008/8730 COUNSEL : H Wilson (Crown) C Jeffreys (Solicitor) (Offender) SOLICITORS : Director of Public Prosecutions (Crown) Legal Aid Commission (Offender) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST FULLERTON J 9 JULY 2010 2008/8730 R v ANTHONY RAMON SULLIVAN REMARKS ON SENTENCE 1 HER HONOUR: On 24 June 2009 the Crown presented an indictment charging the offender, Anthony Ramon Sullivan, with the murder of Adam Guy Prochilo on 3 October 2007. The offender pleaded not guilty to murder and the matter proceeded to trial. 2 On 7 July 2009 the jury returned a verdict of guilty to murder. 3 The delay in sentencing has been as a result of a submission, raised by Mr Jeffreys for the first time in the sentence proceedings convened in December 2009, that at the time of the murder the offender suffered from an underlying neurological deficit associated with pre-existing frontal lobe damage he sustained as a result of a head injury in 1985. He submitted that this condition has impacted adversely on the offender's mental functioning in a number of material respects since that time such as to reduce the objective seriousness of the murder of the deceased for sentencing purposes. 4 Although the Crown Prosecutor was on notice of the offender's claim that he had sustained a head injury in 1985, given that his liability for a homicide committed in 1986 was reduced from murder to manslaughter because the Crown accepted his responsibility was diminished under the since amended s 23A of the Crimes Act 1900, she did not concede that this had any relevant bearing on the sentence to be imposed for the murder of Mr Prochilo in 2007, particularly in the absence of any objective evidence that the offender has brain damage. She further submitted that even if there were irrefutable evidence of brain damage, there was no evidence that any underlying or associated dysfunction was causally connected with the circumstances in which the deceased was killed such as might explain his conduct or reduce his culpability for the death of the deceased. 5 This necessitated Mr Jeffreys obtaining primary medical records and reports from the offender's treating psychiatrist and a forensic psychiatrist prepared for the purpose of the sentence proceedings in 1987, together with an updated neurological report from Dr Wayne Reid, clinical neuropsychologist, and an updated report from Dr Stephen Allnutt, forensic psychiatrist, both of which were prepared for the current sentence proceedings. Importantly, Dr Allnutt did not interview the offender for the purpose of preparing the updated report but focused his opinion on the significance of the results of Dr Reid's neuropsychological assessment of the offender. For reasons that do not require elaboration this process has been extremely protracted. I am acutely conscious that the resulting delay has meant that the family of the deceased have suffered further stress and emotional upset when they were already suffering the loss of a loved family member. I will have something more to say about their loss later. The Crown case at trial 6 The Crown case at trial was that the offender stabbed the deceased in the chest with a large bladed kitchen knife at or near the front door of the offender's home at Manning Street, The Entrance, at around 1am on 3 October 2007, and that he did so either with an intention to kill the deceased or to inflict grievous bodily harm. The evidence at trial established that the offender anticipated the arrival of the deceased at his home early that morning. It was the Crown case that with this knowledge the offender either stabbed the deceased in a premeditated act of revenge at the theft of his wallet some days earlier, or as a result of uncontrolled rage, or both, after an argument erupted between them shortly after the deceased arrived. 7 The offender's case at trial was that he removed the knife from a knife block in the kitchen and stabbed the deceased in self-defence after the deceased barged through his front door and attacked him, causing him to fall from his chair and to slide across the kitchen floor. In his evidence the offender claimed that he was repeatedly hit about the upper body and head by the deceased while he was on the floor and, believing that he was going to be seriously hurt, he reached up, grabbed a knife, swung it around blindly in the direction of the deceased and stabbed him in the chest without intending either to kill him or to inflict grievous bodily harm. 8 It was submitted on his behalf that he was entitled to be acquitted of murder because he acted reasonably in defence of himself by what he acknowledged was his unlawful and dangerous act in wielding the knife or, in the alternative, were the jury to find his response to the deceased's attack excessive, a verdict of guilty of manslaughter should be returned. 9 By their verdict the jury rejected as untrue the offender's evidence as to how the deceased was killed. For sentencing purposes, and consistent with the jury's verdict, I also reject the offender's evidence as untrue. The account the offender gave to Dr Allnutt in the course of the preparation of his report prior to trial also contains a false account of the circumstances in which the deceased died and must be rejected. This account is also cast in the context of what the offender claimed to have been the range and quantity of drugs he had used on the day before the murder, and in the hour before the deceased was killed. This account is at total variance with the offender's evidence at trial as to his drug use. Accordingly, the influence of drugs, together with other issues of fact to be determined for sentencing purposes, must be resolved by me undertaking my own examination of the facts. The offender did not give evidence on sentence. The facts for sentencing purposes 10 The offender and the deceased were known to each other. The offender sold drugs to the deceased which were sometimes paid for in money and sometimes in the form of goods of one sort or another. 11 For some days before the fatal stabbing the offender developed what I am satisfied was very considerable animosity and sustained hostility towards the deceased stemming from his belief that the deceased had stolen his wallet. In a conversation with Mr Gould, a neighbour, some days before the stabbing the offender said that he was going to "get the deceased" or "stab him the next time he came around". Mr Gould described the offender's manner at that time as angry and agitated. 12 The deceased visited the offender some time shortly after 1.11am on the morning of 3 October 2007 having telephoned 20 minutes or so earlier, and either telling the offender he was coming over or asking whether he could come over. I am satisfied that this was either for the purpose of obtaining money from the offender, or drugs, or both. There was evidence that the deceased was in critical need of money to fund some pending legal proceedings. I am also satisfied that the offender did not refuse his request. A question arises as to what the offender's motives were at this time. 13 There were three guests who were asleep in the lounge room behind a closed door when the deceased arrived. They gave different evidence as to what they saw and heard of the arrival of the deceased and his encounter with the offender. Save for their observations of the offender's attitude and behaviour as they emerged from the lounge room to see him holding the knife with blood dripping from the blade, and his attitude thereafter as he coopted them into cleaning up the blood and disposing of the knife to avoid detection, I do not rely on their evidence for the purpose of making any factual findings for sentencing purposes. Instead, I prefer to rely upon the evidence of Mr Gould and Mr Bradshaw, another of the offender's neighbours. Two of the three witnesses in the offender's home attracted a direction under s 165 of the Evidence Act 1995 at trial because of their chronic alcoholism. I regard the third witness as likely to be mistaken as to what she saw or heard of the confrontation having regard to all the evidence. 14 The offender lived at a property in Manning Street, The Entrance, comprised of a house block with two separate dwellings. The dwelling facing Manning Street is where Mr Gould and his partner and her brother resided. The offender lived in the rear dwelling which is accessed from Manning Street along a side path. There is also rear access onto a back lane. Mr Bradshaw lived in the property that shared a common fence line with the side path that allows access to the offender's house. His lounge room window was very close to the offender's front door. 15 At around 2am on 3 October 2007 Mr Bradshaw said that through his open lounge room window he heard muffled voices, a door being shut, someone being winded and then a male voice repeatedly saying in a heightened and panicked tone, "Sorry mate, sorry mate, I didn't mean it" before that man hurried off in the direction of Manning Street. I am satisfied that this was the voice of the deceased either at the time he was stabbed in the chest or immediately after. Mr Gould gave evidence that he went to bed at midnight. Some time after that he heard some yelling from the back of the property which sounded like people arguing. 16 Within minutes of the deceased leaving the offender's property he was heard by another neighbour at his front door calling for help, and saying that he had been stabbed in the chest. Thereafter, his breathing became erratic and laboured. He died before he could be attended by emergency services. 17 On the basis of this evidence I am satisfied that the offender met the deceased at the doorway of his home and that he was waiting in anticipation of his arrival, probably seated at the table just inside the door, with the intention of confronting him about the stolen wallet. I am also satisfied that thereafter there was a brief struggle and shouting, likely to have been the result of the offender's suspicion that the deceased had stolen his wallet (and perhaps the deceased's denials) coupled with the deceased's request for drugs or money, or both. While I am satisfied that the offender's mood at this time was likely to be influenced in some way by the cannabis he had used during the day (with the last ingestion at 9pm on his evidence at the trial), I am not satisfied that this had the effect of heightening his aggression. The evidence from the offender was that the drug left him feeling "whacked/stoned" and "cruising". 18 In addition, I accept the offender's evidence that he also used half a gram of amphetamine during the day before the stabbing. However, in the absence of any independent evidence or reliable evidence of his use of this drug proximate to the time of the stabbing, and, in particular, having rejected as untrue his account that the deceased arrived and then left before returning and assaulting him, and that in the mean time he consumed another half a gram of amphetamine, the effect of the offender's amphetamine use is of minimal significance in contextualising the circumstances in which the deceased was killed. 19 I am satisfied that after or during the confrontation at the door the deceased entered a short distance through the front door into the kitchen/dining room area, at which time the offender armed himself with a knife which he plunged directly into the deceased's chest with moderate to severe force. The knife cut through the skin, the subcutaneous tissue, the cartilaginous part of the rib, the wall of the chest cavity, blood vessels, a lobe of the lung (which was completely transected), to the back of the chest, where it penetrated muscle between two rib bones. The wound track ran slightly upwards and was broadly horizontal to the body. The length of the wound in the skin was 50 millimetres. The wound penetrated to a depth of 250 millimetres. 20 I am satisfied that when he stabbed the deceased the offender formed the intention to kill him. I do not regard any other finding as reasonably open. The knife the offender armed himself with was one of the largest knives in the wooden block in which it was habitually stored. I place particular reliance on the fact that he admitted plunging the knife into the deceased's chest to Mr Gould some days later. 21 Mr Gould's evidence is best summarised in the following way. He said he met the offender by chance in their shared yard on 7 October 2007 and that the offender openly and boastfully volunteered an account of the circumstances in which the deceased was killed. He said that the offender told him that the deceased came into his house and tried to stand over him whereupon he said to the deceased, "hang on a minute". He said that he then went and got a knife and came back and stabbed him. He said that the deceased said, "No Sull", and that he then demonstrated how the deceased held his hands up with his palms out above the height of his shoulders. Mr Gould said that the offender told him that the knife went straight into the deceased and that he fell to the ground. He said that the deceased then got back up and ran out the door. He said the offender told one of his guests to get rid of the knife. This account to Mr Gould was also consistent with what the offender told his daughter in a conversation covertly recorded on 7 October 2007 when, in referring to the deceased, he said "at least I put him down". 22 In neither conversation did the offender display any regret or remorse at having killed the deceased. To the contrary, he expressed some satisfaction at having killed him. His conduct within hours of the killing in both actively misleading police and deflecting the police investigation into the killing compels the same conclusion. Victim impact statements 23 I received victim impact statements from the deceased's brother, Vincent, his former de facto wife, Joanne Salter, their son, Daniel, and two step-daughters, Kellie and Kylie. Ms Salter's statement was prepared on behalf of the deceased's current wife, Kim, and their children, Lily, Rose and Jasmine and step-children, Jake and Joe, who were unable to prepare statements on their own behalf. 24 Ms Salter describes the love and laughter the deceased brought into her life and those of her children. She says that despite the fact that she was separated from the deceased at the time of his death, the family continue to mourn his death and have become emotionally drained by their exposure to the criminal justice system. Although Ms Salter received grief counselling, her depression has compromised her ability to resume full-time work. 25 The deceased's step-daughter, Kellie, explains how her father committed suicide soon after she was born and Kylie explains how she has never really known her biological father. As a result, both young women conveyed in their statements how proud they both were to have the deceased as their father. They also speak of how it has hurt them to see their mother so heart broken and how helpless they feel being unable to do anything to help ease her pain. Kylie describes suffering from severe depression following the loss of her only father figure. 26 The deceased's eldest son, Daniel, speaks of how very close he was to his father, and the range of emotions he has experienced over the two years following his death, ranging from confusion and disbelief to sadness, anger and now grief. He has been receiving grief counselling in order to deal with his loss, which has also affected his ability to concentrate at school. 27 The deceased's brother, Vincent Prochilo, explains that despite the deceased being his half brother, he regarded him as his closest sibling. Mr Prochilo's statement was prepared on behalf of their father, Guy Prochilo, whom he was helping to write a joint statement when he passed away in November 2009. He described the death of his brother as the starting point of their father's gradual demise, and speaks of the severe deterioration in both his physical and mental health from the experience of attending court. 28 I accept that the circumstances of the deceased's death have affected each member of the deceased's family and those close to him. While the family may expect to see their loss and pain reflected in the sentence to be imposed, that is not the reason I have received their statements in these proceedings. I do however take into account their statements in the way permitted by the law. No sentence of imprisonment can compensate for the loss of a loved one. I extend them my sympathies. The relevant law 29 Section 19A of the Crimes Act 1900 specifies the maximum penalty for murder as imprisonment for life. 30 Section 61(1) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act") provides for the imposition of the maximum penalty where the Court is satisfied that the level of culpability in the commission of the offence is so extreme as to require that sentence to be imposed. The Crown did not submit that a life sentence should be imposed in this case. I accept that concession. 31 The offence of murder is, however, an offence to which a standard non-parole period of 20 years is prescribed pursuant to the provisions of Div 1A of Part 4 of the Sentencing Act. The law provides that this is the non-parole period which is to be imposed after trial for offending in the mid range of objective seriousness, unless there are aggravating or mitigating factors justifying a greater or lesser non-parole period relative to the standard non-parole period of 20 years as a reference point (see Maxwell v R [2007] NSWCCA 304; 177 A Crim R 498 at [18]). 32 Section 54B(3) of the Sentencing Act specifies that the only reasons which justify departure from the standard non-parole period are the aggravating and mitigating factors referred to in s 21A, and that is so irrespective of whether the sentence under contemplation may be greater or lesser than the standard non-parole period of 20 years. Section 21A(1)(c) also requires me to take into account any other objective or subjective factors that affect the relative seriousness of the offence, and provides that these are in addition to any other matters required or permitted to be taken into account under any Act or rule of law. 33 As the Court of Criminal Appeal has very recently had occasion to emphasise in R v McEvoy [2010] NSWCCA 110, the legislature has provided a structure by reference to which a sentence for a standard non-parole period offence is to be passed. In this case that obliges me to clearly articulate the reasons why, in my assessment, the objective seriousness of the offending falls within, above or below the mid range of offending. 34 The concept of objective seriousness was described in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [85]-[86] as follows: "The multiplicity of purposes of sentencing set out in s 3A of the Act, quoted above, do not suggest a narrow perspective as to the range of facts and matters that are to be regarded as "objective" facts and matters which may affect the judgment involved in assessing "seriousness". It is too narrow a perspective to confine attention to the physical acts of the offender and their effects, as those acts or effects could be observed by a bystander. The inquiry which we consider to have been intended is one that would take into account the actus reus, the consequences of the conduct, and those factors that might properly have been said to have impinged on the mens rea of the offender… Some of the relevant circumstances which can be said "objectively" to affect the "seriousness" of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example, intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender's capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected: Channon v The Queen (1978) 20 ALR 1 and R v Engert (1995) 84 A Crim R 67. Such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment. Other matters which may be said to explain or influence the conduct of the offender or otherwise impinge on her or his moral culpability, for example, youth or prior sexual abuse, are more accurately described as circumstances of the offender and not the offence." (emphasis added) 35 As McClellan CJ at CL noted in Mencarious v R [2008] NSWCCA 237; 189 A Crim R 219 at [33], the non-parole period is but one aspect of the sentence, and that even where a standard non-parole period is specified, a number of issues need to be addressed when imposing a custodial sentence, including the subjective case of the offender, which may itself provide a basis for departing from the standard non-parole period, and whether there are special circumstances for adjusting the ratio between the non-parole period and balance of term as provided for in s 44(2) of the Sentencing Act. 36 Mr Jeffreys submitted that the various medical reports tendered on sentence, including material relating to the offender's hospitalisation in 1985 and various tests performed since that time, establish a causal link between his brain damage, and associated neurological dysfunction, and the circumstances in which the deceased was fatally stabbed. He also submitted that this finding, when coupled with the Crown's considered concession when the sentence proceedings were convened in December 2009 that the offence fell just short of the mid range of objective seriousness (at that time absent any evidence of the offender's mental state), a concession that she did not resile from when the proceedings resumed in June of this year when further medical evidence was tendered, necessitates the imposition of a sentence less than the standard non-parole period of 20 years. 37 Although I informed the parties in the sentencing hearing that despite serious misgiving about the appropriateness of the Crown's concession I was prepared to accept it for sentencing purposes, on reflection I am unable to do so. Not only is the degree of objective seriousness in the intentional killing of the deceased a question of mixed fact and law such that I am not bound by the Crown's concession, since I am obliged to articulate the reasons for my own assessment of the objective seriousness, and since I regard the offending, absent the medical evidence, as in the mid range, I am logically unable to so. Having come to that view, I afforded the parties the opportunity to file further written submissions. 38 I was referred to a number of cases where the Court of Criminal Appeal has recently considered whether a sentence imposed at first instance for murder after trial was excessive, either because of error in the sentencing judge's approach to an assessment of objective seriousness, or because the offending was wrongly appointed as beyond mid range. These cases were said to support an assessment of the offending in this case being just short of the mid range of objective seriousness, the position both of the parties urged upon me. In Versluys v R [2008] NSWCCA 76, one of the cases I was referred to, McClellan CJ at CL warned against comparing the circumstances of individual murders when sentencing a particular offender noting what the Chief Justice observed in R v Slater [2001] NSWCCA 65; 121 A Crim R 369 at [52], namely that: "In this area, prior cases of this character are a guide and are likely to be a more useful guide than the Judicial Commission's sentencing statistics. However, murder is a crime which can be committed in a wide range of gravity and objective circumstances. There is also a significant range of differences in the subjective circumstances. This is a context where the maximum penalty is life and, accordingly, the range over which the sentencing discretion can be exercised is the largest open to a judge in our justice system." 39 Each of the cases to which I was referred has features distinguishing it from the present case. That said, in those cases where an intention to kill was found, and where a weapon was used (as is the case here), the Court was satisfied that the offending was in the mid range, even if there were circumstances in some of those cases justifying a departure from the imposition of the standard non-parole period (see Perry v R [2006] NSWCCA 351; 166 A Crim R 383, Yun v R [2008] NSWCCA 114; 185 A Crim R 58 and Collon v R [2009] NSWCCA 187). I am unable to discern any principle which emerges from the cases cited that supports a finding of objective seriousness less than mid range for this offending, again absent the medical evidence. 40 The fact that I am satisfied that the offender intended to kill the deceased was material to my assessment of the objective seriousness of this offending being within the mid range. In this connection, as both Hunt AJA and Simpson J emphasised in separate judgments in Apps v R [2006] NSWCCA 290, a finding that an offender acted with an intention to kill does not of itself place a murder within or above the mid range of objective seriousness. As her Honour said at [47] and [49]: "The submission that was put on behalf of the applicant was that an intention to kill does not of itself take a murder above the mid-range of objective seriousness. That assessment must be made by reference to other factors, including the actus reus of the crime, the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). In my opinion this is a correct statement of the law as explained in Way . … Certainly, in a case of murder, the state of mind in which the offence is committed is a relevant consideration going to objective seriousness. As is well known, murder may be established by proof of an act causing death committed when the act is accompanied by any one of three states of mind: in descending levels of seriousness they are: an intention to kill, an intention to cause grievous bodily harm, or reckless indifference. I have no doubt that an intention to kill as distinct from either of the two alternatives, is a consideration tending to greater objective seriousness rather than lesser. So much is obvious. Indeed, in Way , while the Court expressly alluded to mental states, followed this by the parenthetical observation that "intention is more serious than recklessness". However, of itself, an intention to kill alone cannot establish that a particular instance of the crime of murder is above the mid-range of seriousness. It is not the only circumstance relevant to that assessment. In this the submissions made on behalf of the applicant are correct." 41 Although I am not persuaded to the criminal standard that the murder was premeditated in the strict sense of it being planned in advance, I am satisfied that the offender intended to confront the deceased about the stolen wallet and that he must have appreciated, given his feelings of hostility towards the deceased, that there was a risk that this would lead to a physical confrontation if the deceased denied stealing it. I am also satisfied that when he selected the knife from the knife block he acted with determination and deliberation. The fact that the knife was only used once as distinct from the deceased suffering multiple stab wounds does not diminish the level of objective seriousness in this offending given that I am satisfied the offender aimed the knife at the deceased's chest and inserted it under force. 42 The question that remains is whether I am persuaded on the probabilities that the offender's capacity to reason and exercise self-control at the time he stabbed the deceased was undermined by his mental state such as to reduce the objective seriousness of the offending and allow for an assessment that it is less than mid range offending. The evidence bearing upon the offender's mental health 43 What follows is a chronology of the offender's presentation to various specialists and clinicians. The chronology is drawn from the material that was before Lee J, the sentencing judge in 1987, evidence tendered by the Crown in the proceedings before me, and evidence tendered by Mr Jeffreys after further enquiries were undertaken with a view to updating the reports of Dr Reid and Dr Allnutt. 44 The offender was apparently assaulted on 12 August 1985 while he was changing a flat tyre on his car. He was admitted to Gosford Hospital that evening, unconscious with a right parietal skull fracture. A CT scan of his brain was performed on 14 August 1985. It revealed no abnormalities. Upon regaining consciousness on 17 August 1985 he complained of experiencing hallucinations and was noted to be aggressive. He was discharged on 20 August 1985. 45 In July 1986 the offender was charged with the murder of Kevin Bartley who was fatally stabbed following an argument with the offender about unpaid rent. The offender claimed the deceased produced a knife. Three knives were found deeply imbedded in the body of the deceased (one of which was hammered into the body with a piece of wood). There were numerous stab wounds to the deceased's neck, chest and back. 46 The Crown accepted the offender's plea of guilty to manslaughter in full discharge of the indictment on the basis of his diminished responsibility from the brain damage he was thought likely to have sustained as a result of the head injury in August 1985 in combination with a chronic cannabis addiction. Various reports were tendered on sentence. In summary, they record the following: 47 On 18 February 1987 John Taylor, psychologist, reported the results of his psychological testing of the offender. He concluded that the offender suffered from a form of organic brain disorder and had a long-standing passive-aggressive personality with poor social adjustment likely to have been influenced by his chronic and entrenched use of cannabis and his lack of insight into its influence. He also noted that he tested within a low average level of intellectual functioning. 48 A second CT brain scan performed on 24 February 1987 was also normal. 49 On 3 March 1987 Dr Malcolm Dent, psychiatrist, referred to the psychological testing conducted by Mr Taylor and concluded that the offender's frontal lobe dysfunction and cannabis abuse contributed to a situation where his degree of impairment could not be regarded as trivial but was difficult to quantify. That said, he was of the view that the degree of impairment impacted adversely on the offender's capacity to exercise control and judgment when surprised or threatened, and which could have contributed to impulsiveness and a limited insight into the consequences of his behaviour. . 50 On 5 March 1987 Dr Rod Milton, psychiatrist, concluded that despite there being no evidence of significant brain damage or congenital abnormality of the brain on recent imaging, the offender did suffer a serious head injury where it would be reasonable to expect some long term injury to the brain. This, together with a history of an antisocial personality, accompanied by chronic cannabis use, was thought likely to give rise to a tendency to aggression. 51 On 19 March 1987 Lee J sentenced the offender to a term of 16 years imprisonment with a non-parole period of 12 years. The Court of Criminal Appeal refused leave to appeal against the severity of that sentence. 52 In pursuit of a claim for criminal injuries compensation in 1994, after the offender was released to parole, he was referred to Dr Reid for neuropsychological and neurological assessment at the request of the Legal Aid Commission. 53 In a report of March 1994 Dr Reid confirmed that the offender was of average to low intellectual ability but found no evidence of a significant impairment in his frontal lobe functioning adversely impacting on his ability to adapt and regulate his behaviour. Rather, he was of the opinion that entrenched personality traits relating to emotional control, a tendency to act irrationally and with hostility, with an accompanying lack of empathy for others, was revealed. 54 In 18 April 1994 Dr Ross Mellick, neurologist, noted Dr Reid's observations and reported that while on clinical examination in March 1994 no neurological abnormality was revealed, the time during which the offender was unconscious after being hospitalised in 1985, did imply an injury of sufficient severity to result in a permanent impairment. He recommended that an MRI scan of the brain be conducted. 55 On 9 June 1994 the MRI scan confirmed the presence of cerebral injury by demonstrated morphological abnormality. 56 On 24 October 1994 Professor James Lance, consultant neurologist, interpreted the MRI scan as indicative of a minor degree of cerebellar atrophy and localised atrophy involving the anterior pole of the left temporal lobe. He determined that this was consistent with a blow to the right parietal region, or contrecoup lesion, and that, on the balance of probabilities, the offender suffers from a degree of brain damage. 57 On 29 November 1994 Dr Arthur Shores, neuropsychologist, reviewed the reports and findings of his fellow clinicians and reported evidence of cognitive impairment consistent with a head injury. Dr Shores determined that the offender's self-report of mood swings, poor temper control, hostility and aggression were likely to be related to the severity of the head injury, however personality factors and his cannabis abuse over a prolonged period have also contributed to his impairment profile. This was confirmed by the Minnesota Multiphasic Personality Inventory - 2 (MMPI-2) which revealed a severe psychological disorder consistent with a long history of psychological maladjustment predating the head injury. He noted under the MMPI-2 Treatment Considerations that: "Although many individuals with this pattern seek psychological attention for their problems, they are usually poor risks for insight-oriented psychotherapy because they are not very introspective, have inadequate ego controls, have difficulty expressing emotions in a modulated way, and are unpredictable in treatment. The client is so emotionally and socially alienated that it may be difficult for a therapist to gain his confidence. Individuals with this MMPI-2 clinical profile tend to have long-term adjustment problems that are resistant to change… Long-term treatment is probably necessary if significant gains are to be made…" 58 He went on to note that: "Assessment of his personality using the MMPI-2 reveals an individual with severe psychological disorder as well as antisocial features. The computerised interpretation warns of the possibility of a schizophrenic process. It is recommended that psychiatric opinion in relation to this should be obtained. Mr Sullivan would like to be able to continue seeing a psychologist for treatment as he had done in prison. While it appears the likelihood of any "cure" for his psychological problems is remote, I would recommend the intervention be made available." 59 In a report of 14 February 2009, obtained prior to trial, Dr Allnutt reviewed the results of previous neuropsychological testing, and the reports of Dr Milton and Dr Dent in 1987, and concluded that the offender manifested a range of cognitive impairments suggestive of frontal lobe damage. He was not provided with the reports obtained in 1994, I suspect because at that stage Mr Jeffreys was unaware of their existence. Dr Allnutt also expressed the view that it was possible there had been further deterioration in the offender's cognitive functioning over time and suggested that a further CT scan and further neuropsychological testing be undertaken. 60 Upon further neurological testing by Dr Reid in December 2009, after the trial, the offender presented with similar deficits to those identified by Mr Taylor in 1987. Dr Reid was satisfied these findings were consistent with the offender having suffered frontal lobe damage consequent upon a traumatic brain injury. He recommended cognitive behavioural strategies in order to reduce the offender's impulsivity. 61 Having reviewed Dr Reid's most recent report, Dr Allnutt reported on 16 December 2009 that the frontal lobe damage confirmed by Dr Reid is commonly associated with an increased risk of impulsive behaviour and poor judgment. 62 On 1 June 2010 Dr Dennis Lowe, ophthalmic surgeon and consultant neurologist, reported that the offender's capacity for critical judgment and insightful thinking was extremely limited. After referring to Professor Lance's finding in October 1994 that the offender suffers from a localised area of atrophy involving the anterior pole of the left temporal lobe, Dr Lowe expressed the opinion that damage to this area may result in behavioural changes. In this connection he noted the offender's reported history of mood swings and very poor temper control. 63 Having regard to the considered views of a range of clinicians over an extended period of years, I am compelled to the finding that the offender does have brain damage which impacts adversely on his mental and psychosocial functioning, and which increased the risk of him overreacting to the deceased when he presented at his door in the early hours of 3 October 2007 looking for drugs or money, or, because of his animosity towards the deceased, prevented him from controlling his aggression. In R v Hemsley [2004] NSWCCA 228 Sperling J set out the principles that fall to be considered when an offender who suffers a mental illness is to be sentenced: "[33] Mental illness may be relevant … in three ways. First , where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43]. [34] Secondly , mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSWCCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSWCCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42]. [35] Thirdly , a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26]. [36]A fourth , and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence; Israil at [24]." 64 While I am satisfied that this offender's brain damage and associated dysfunction operates to displace to a significant degree the need for the sentence to reflect the need for general deterrence, I am not persuaded, in the circumstances of this case, that it significantly diminishes the offender's moral culpability for the death of the deceased, or that his conduct does not call for denunciation. This is not only because his brain injury is one of a number of explanations, or possible explanations, identified by Dr Allnutt for his conduct in arming himself and stabbing the knife into the chest of the deceased, but the offender's behaviour before, immediately after, and then some days after the offence militate against allowing any relaxation of his moral culpability. 65 Dr Allnutt was ultimately of the view in his most recent report that it was reasonable to conclude that there were a number of elements active at the time of the death of the deceased, including the offender's inborn tendency to impulsive aggression, substance intoxication, depressive symptoms, an acrimonious relationship with the deceased and frontal lobe brain damage, which increased the offender's vulnerability to impulsive behaviour. Dr Lowe also identified these same factors as likely to have been active at the time of the offence. Not only do I consider this aspect of his opinion as outside his expertise, it would appear that he has simply restated Dr Allnutt's views without, as I have noted earlier, the offender being interviewed after he was convicted of murder by either specialist about the circumstances of the offending in light of the jury's verdict. I have already discounted the influence of the offender's drug use on the day of the killing as providing any explanation for, or context to, his offending, although on the basis of the history the offender gave to Dr Allnutt he had been both supplying and using drugs in considerable quantities for some months prior to October 2007. While this does not aggravate the offending, or bear on the question of his moral culpability for the deceased's murder, it does militate against his prospects of rehabilitation particularly given that his responsibility for the intentional killing of another man in 1986 was found to be diminished in part because of his chronic use of cannabis. The offender's prior record 66 As noted by McClellan CJ at CL in Aslett v R [2006] NSWCCA 360 at [24] the significance of an offender's previous criminal record for sentencing purposes under s 21A(2)(d) of the Sentencing Act has been authoritatively determined by a five judge bench in R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 such that, in this case, the offender's prior record will not increase the objective seriousness of the murder. I do, however, take it into account in determining where, within an available range, sentence should be fixed. In addition, his Honour went on to say that prior offending may diminish any leniency which might otherwise be shown to an offender consistent with the proportionality principle in Veen v R (No 2) [1988] HCA 14; 164 CLR 465 at 477. As stated in Veen at 477, prior record is also relevant: "… to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted". 67 Since the offender's release to parole after serving his sentence for manslaughter he has been convicted on six separate occasions for possession of prohibited drugs and for a number of offences of dishonesty. I have already made reference to his drug use and how this diminishes his prospects of rehabilitation. The fact that there are no entries on his record for violent offending since his release does, however, give some indication that he is not without some capacity to control his impulsivity and tendency to aggression, which on the evidence are entrenched aspects of his personality as well as being manifest features of his brain damage in certain circumstances. That said, and while I am conscious that the offender must not be punished a second time for the killing in 1985, I am of the view that the protection of the community is a relevant consideration in imposing a sentence for a second homicide. Subjective circumstances 68 The offender is currently 51 years of age. He left school at the age of 15 and even at that age had difficulties adjusting his behaviour to the demands and needs of others. He was often in trouble and was a truant. He was detained as a juvenile on repeated occasions. He has worked as a labourer but not since 1982. He has had three long-term relationships and has children, including a daughter with whom he has an ongoing relationship. 69 It was not submitted that there are any features of the offending or the offender's personal circumstances which mitigate the seriousness of the offence of murder. Neither is it submitted that there is any justification for a finding of special circumstances such as to warrant interfering with the statutory ratio between a non-parole period and balance of term under s 44 of the Sentencing Act. Sentence 70 In sentencing for this offence the standard non-parole period of 20 years remains a most significant point of reference despite my being satisfied that the probabilities favour the offender's brain damage having some causal connection with the commission of the offence, albeit intermixed with other influences. In addition, and to a significant extent a counteracting factor to the impact of his neurological and physiological dysfunction on sentence, is the protection of the community. In my view, this consideration, statutorily recognised as one of the several purposes of sentencing under s 3A of the Sentencing Act, has a particular resonance in this case in light of the offender's previous conviction for manslaughter and what is described consistently throughout the medical evidence as the offender's entrenched behavioural and personality dysfunction and the associated tendency to violence and unrestrained hostility when he is crossed. 71 Anthony Ramon Sullivan you are sentenced to imprisonment for 25 years comprised of a non-parole period of 18 years and 9 months commencing on 7 October 2007 and expiring on 6 July 2026 with a balance of term of 6 years and 3 months commencing on 7 April 2026 and expiring on 6 October 2032. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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