Supreme Court New South Wales Medium Neutral Citation: R v JC [2012] NSWSC 1393 Hearing dates: 3 September 2012 Decision date: 19 October 2012 Jurisdiction: Common Law - Criminal Before: Barr AJ Decision: (1) The offender is convicted of the offence of manslaughter. A non-parole of imprisonment for 3 years is set which will be taken to have commenced on 7 October 2010 and which will expire on 6 October 2013. The balance of the sentence will be two years and 6 months, expiring on 6 April 2016. The first day on which the offender will become eligible for release to parole will be 6 October 2013. (2) I direct that the offender serve her sentence as a juvenile offender Catchwords: CRIMINAL LAW - sentence - manslaughter Category: Sentence Parties: Regina JC Representation: Mr W.Creasey (Crown) Ms J. Manuell SC (Offender) Office of the Director of Public Prosecutions (Crown) David Davidge (Offender) File Number(s): 2010/332095 Judgment 1HIS HONOUR: The offender, whom I shall call JC, has pleaded guilty of the manslaughter of the person I shall refer to as BD. The plea came late. The offender was originally charged with the murder of BD but the jury that tried her on that charge were unable to agree. On the date fixed for her retrial she pleaded not guilty of murder but guilty of manslaughter and the Crown accepted the plea in discharge of the indictment. Both sides had indicated to the Court a few days earlier that the matter would be resolved in that way. 2At the time of BD's death he was 16 years old and the offender was 17 years old. The offender was in a domestic relationship with BD's elder brother, whom I shall call SD. They lived together in a flat. The deceased used to visit them and sometimes stayed overnight. 3This account is adapted from a statement of agreed facts tendered on sentence. During the evening of 6 October 2010 BD, SD and the offender were in the flat. They cooked dinner. BD and SD were drinking beer but the offender did not consume alcohol. BD and SD began arguing with one another and pushing each other around. The commotion they were making disturbed the landlords of the flat, who lived close by. Between 10.00pm and 11.00pm the two were arguing in the street outside the flat. The offender was present. At about midnight the three of them were heard arguing in loud voices. Some time later the voices became louder. The offender was telling someone to get out and another voice asked where he was going to go. The offender's voice was described as very distressed and panicky. She continued to say "get out, get out". Doors were being closed and furniture was being moved about. One of the owners of the flat decided to call the police, but while she was doing so SD knocked at the door. He said that his brother was dying. The other owner entered the flat and saw the deceased seated on a chair, bleeding from the neck. The ambulance was called and the deceased was taken to hospital. Those having the care of him did what they could, and he survived until 14 October 2010. On that day life support systems were withdrawn and he died. 4The deceased died as a result of a stab wound inflicted by the offender. The knife she used belonged to SD. It was a folding knife which he normally kept on his bedside table. The wound inflicted by the knife went through soft tissue for a distance of 2.4 centimetres. It produced massive bleeding. 5The precise circumstances in which the offender stabbed the deceased are far from clear. The offender herself says that she has no memory of the events. SD says that he saw the offender hug the deceased. He, SD, then left the room and when he returned he saw that the deceased was bleeding. He did not see a knife. He did not know what knife had been used to stab the deceased. 6A uniformed officer who attended the premises spoke to the offender. He asked her what happened and she said - "I am schizophrenic and I blacked out. I don't know what happened. I hate it." The officer cautioned the offender and she said - "I got up from the bed and there was a knife on the floor." The offender told another officer that she did not know what had happened. 7The offender participated in a recorded interview. She said that she did not know how the deceased came to be injured. She did not have anything to say about a disturbance in the flat during the previous evening. She said that there was no party or anything of that description, that she did not know anything about any fighting in the street, that there was no one else in the flat that night. She said that she and SD went to bed between 2.00am and 3.00am and that she was woken by the deceased. She did not know what time that was. She did not know what happened after that. She had no recollection of seeing the deceased bleeding and she did not know how he came by his injuries. She doubted whether she had stabbed the deceased. 8The offender's mobile telephone records show that there were calls between the telephones of the deceased and SD up to 4.22am. The emergency call, after the stabbing of the deceased, was made at 4.36am. These text messages were sent from the offender's mobile telephone to the deceased - "10.34 pm - "Where are you BRO!? We are worried! Call me NOW!! 10.41pm - "No we do care u aint goin jail while im alive come home NOW!! We went looking for u we couldn't find u. Were are you???? Are you ok???!!!!! 10.44pm - "(BD) its pip come to my house ok I care bout u ok" 10.47pm - "Plz bro ok its pip I love u bro" 10.52pm - Come back bro k fuck every1 else just come bak fuck im not getting locked up 4 no 1 k come now" 10.56pm - "Thanks (BD) u just made (SD) dump me thanks a lot" 11.01pm - "No actually he just dumped me. im now on the street walkn past the pools. Thanks a lot. Im not ur sis anymore ask (SD) if u dnt bleve me". 9Patterns of deposited blood show that the stabbing occurred in the lounge room of the flat close to the bedroom door. 10The plea of guilty of manslaughter was made by the offender on the basis that her act which caused his death was unlawful and dangerous. Her plea was accepted on the same basis. 11The Court received a psychological report of Professor Susan Hayes and a background report from the Department of Juvenile Justice. It appears from this evidence that the offender had an unhappy childhood. She did not get on well at home. While she was in primary school she was found to be suffering from Crohn's Disease. The symptoms of that disorder caused her continual embarrassment and distress. She had to attend hospital frequently and missed a lot of school. She started off well in high school, but her work there soon began to deteriorate. She was then living in and out of home. She began taking alcohol and illicit drugs. It appears that when she was not at her parents' home she was living in temporary premises or on the streets. She developed bulimia. She left home altogether at fifteen and lived in a refuge. She continued to attend school intermittently. She was dismissed from the refuge because of her use of alcohol and other drugs and had to move to another refuge where she met SD. During these times she was sexually assaulted a number of times. She has had miscarriages. She developed anxiety attacks and now suffers what Professor Hayes calls Post Traumatic Stress Disorder, suffering flashbacks of frightening incidents in her past life. At some stage, exactly when is not clear, she was prescribed Seroquel, a drug used to treat psychiatric illness. In August 2009 she overdosed on Seroquel in an attempt at suicide. Two months later she was admitted to hospital with alcohol intoxication. Over the years she has harmed herself by cutting. It seems that Seroquel was still being prescribed for her at the time of the death of the deceased, hence her remark to the investigating police officer that she was schizophrenic. 12The evidence does not clearly point to a contemporary diagnosis of schizophrenia though Dr. Westmore thought she might have suffered from drug-induced psychosis. 13By the time she killed the deceased, the offender had given up alcohol. She was craving marihuana. She was taking Seroquel. Evidence of things overheard by others shows that immediately before she stabbed the deceased the offender was angrily ordering him out of the flat. There is no reason to think that the deceased offered any violence or did anything to put the offender in fear. The offender generally liked and respected him. I do not think that the offender had reason to fear injury at the hands of the deceased. It is possible, of course, that she acted out of some unreasonable fear, stemming from her troubled psychological state, but the evidence does not justify such a finding. I accept the evidence of Professor Hayes and Dr. Westmore that when she killed the deceased the offender was probably in a dissociative state, that her acts were voluntary, and that they were not caused or influenced by the prescribed drug she had been taking. 14The offender was born in December 1992. She was almost eighteen years old when she committed the offence and is now almost twenty years old. Professor Hayes interviewed her and administered standard psychological tests. The results placed the offender in the range of average intelligence. Professor Hayes thought that in view of the offender's unfortunate history of disruptive schooling her verbal standard score in the Kaufman Brief Intelligence Test was an underestimate of her true ability. Accordingly, Professor Hayes' opinion was that the offender's overall intelligence was above average. 15The offender was arrested on 7 October 2010 and charged with murder. She has been held in custody ever since. She has been detained in a Juvenile Justice Centre. She has participated in various programs, particularly those relating to recreational and gymnasium work. 16The offender's schooling in custody has been through attendance at a school held within the centre where she has been held, as well as by distance education with TAFE. She is committed to her courses and has been commended by the Principal for outstanding service to the school community. She hopes to complete a certificate in beauty therapy and wishes to find an apprenticeship or a job within the beautician or hairdressing field. 17She is well regarded by those who have the care of her. She has learned to stay out of trouble. She acts responsibly. Her family have supported her and have helped her in numerous ways during her incarceration. Her relations with her family are much better than they were during the difficult years I have spoken about. 18She has received treatment for bulimia. 19Professor Hayes considers that the offender is articulate in her description of her past and present situation and has good insight into her circumstances. Professor Hayes considers that the offender will benefit from counselling and psychotherapy and has good prospects of remaining abstinent from drugs and alcohol and carving out a better life. She has undertaken counselling, including for drug and alcohol misuse and eating disorders. 20There is no suggestion that the offender is now psychotic. She is prescribed Sertaline for anxiety. 21The serious aspects of the offence are that the offender deliberately used a knife and that her act was done in the presence of the deceased's brother, who was noticeably shaken by the event. 22By accepting the offender's plea of guilty of manslaughter the Crown accepts that the offender did not intend so much as to inflict serious injury on the deceased. I am satisfied that she acted on the spur of the moment, seizing a knife that happened to be close at hand. 23The plea of guilty came late, but nevertheless saved the cost of a second trial. I shall make a modest allowance for it. 24The offender told Professor Hayes that she was remorseful and Professor Hayes accepted her expression as genuine. More importantly, the offender has told her Supervising Officer the same thing, and her officer accepts that she is genuine in her expression. 25I find that she is remorseful. I have made some reference to the things the offender has done while in custody, the courses she has taken, and the attitude she has displayed. As a result of these matters those who have the supervision of her consider that, though she has shown periods of disengagement at times, she has accepted and engaged in all directed counselling and programs. They think that her prospects of rehabilitation are good. Professor Hayes also considers her prospects good and I find on all this evidence that the offender's prospects of rehabilitation are good. 26The offender has no prior record. 27A Victim Impact Statement was received from Gino Pepi, the father of the deceased. The report shows how distressing the death of the deceased has been for Mr Pepi and how he continues to suffer. In imposing sentence, the Court is not permitted to take these matters into account, but the sympathy of the Court goes out to Mr Pepi and his family and to all those who have been affected by these tragic events. 28When sentencing juvenile offenders, the Court has to have regard to a number of special matters. First, while the Court must consider the interests of the community in the imposition of a sentence that reflects the gravity of the offence, special regard must be paid to the rehabilitation of young offenders. In this respect deterrence is generally given less weight and, to some extent, has to give way to the need to foster rehabilitation. Secondly, when a young offender is undergoing a course of education, as this offender is, it is desirable that if possible the sentence allow that course to proceed uninterrupted. Thirdly, special attention needs to be given to the needs of dependent or immature offenders for guidance and assistance. 29Having in mind the gravity of the offence and the countervailing subjective features, I have come to the view that an appropriate head sentence will be imprisonment for five years and six months. The facts that the offender is still young, has good prospects of rehabilitation and will have particular need on release to parole of supervised treatment and support to help her overcome the serious setbacks she has encountered justifies fixing a parole period that exceeds one-third of the non-parole period. 30Ever since her arrest, the offender has been kept within a Juvenile Justice institution and has turned herself to the special programs made available for her there. She has responded well and has taken the opportunity to prepare herself for a useful and responsible life on her release, though there is still a long way to go. If the offender were moved to an adult correctional institution these programs would not be available to her and that would be detrimental to her prospects of rehabilitation. In that regard I accept the opinion of the authors of the background report. 31I find that special circumstances exist that make the offender eligible to serve her sentence as a juvenile offender, notwithstanding that she has now attained the age of eighteen years. They are that she is vulnerable on account of illness, in particular from bodily malfunction resulting from Crohn's Disease and in that her fragile psychological state is apt to affect her emotions and judgment. In addition, the educational, vocational training and therapeutic programs she needs are available to her only in a detention centre. In my opinion it is only by the continuation of those programs that her prospects of rehabilitation will be best supported. 32JC, for the manslaughter of BD I sentence you to imprisonment. I set a non-parole period of three years, which will be taken to have commenced on 7 October 2010 and which will expire on 6 October 2013. The balance of your sentence will be two years and six months, expiring on 6 April 2016. The first day on which you will become eligible for release to parole will be 6 October 2013. I direct that you serve your sentence as a juvenile offender. ********** 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. Decision last updated: 20 November 2012