Supreme Court New South Wales Medium Neutral Citation: R v Armstrong [2014] NSWSC 700 Hearing dates: 17 April and 23 May 2014 Decision date: 30 May 2014 Jurisdiction: Common Law Before: Adamson J Decision: (1) For the manslaughter of Felipe Flores, the offender is sentenced to a term of imprisonment of 13 years and 3 months, commencing 21 October 2012, with a non-parole period of 9 years and 11 months. (2) The earliest date upon which the offender is eligible for release on parole is 20 September 2022. Catchwords: CRIMINAL LAW - sentence - manslaughter - guilty plea directly contradicted offender's evidence in his previous trial - key witness inaccurate about sequence of events but otherwise reliable - offender inflicted grievous bodily harm upon deceased upon discovering deceased was HIV positive - minor provocation in circumstances where offender made no inquiry as to the HIV status of the deceased and offender was prepared to engage in sexual acts not knowing whether person had HIV - objectively serious offence having regard to brutality of assault and relatively minor provocation - statistical analysis of sentences imposed for manslaughter unhelpful given their varied factual nature - no adverse movement of sentencing practices since commission of crime in 1991 established - no concurrence appropriate with sentence for unrelated offences of sexual intercourse without consent - lack of remorse - offender not entitled to leniency given offender's criminal history before and after his killing of deceased - low prospects of rehabilitation given offender's subjective circumstances - small utilitarian value of guilty plea due to its timing - offender's institutionalisation by reason of lengthy incarceration not a special circumstance Legislation Cited: Crimes Act 1900 (NSW), s 24 Crimes (Sentencing Procedure) Act 1999 (NSW) Sentencing Act 1989 (NSW), s 5 Cases Cited: Armstrong v R [2013] NSWCCA 137 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Hoerler [2004] NSWCCA 184 R v Lavender [2005] HCA 37; 222 CLR 67 R v MJR [2002] NSWCCA 129; 54 NSWLR 368 R v Olbrich [1999] HCA 54; 199 CLR 270 Scott v R [2011] NSWCCA 221 R v Previtera (1997) 94 A Crim R 76 Texts Cited: New South Wales, Judicial Commission of New South Wales, Sentenced Homicides in New South Wales: 1990-1993, (June 1995) Category: Sentence Parties: Regina Paul Darcey Armstrong (Offender) Representation: Counsel: K McKay (Crown) J Nicholson SC (Offender) Solicitors: Director of Public Prosecutions (Crown) Legal Aid Commission (Offender) File Number(s): 2007/63851 Publication restriction: Nil Judgment Introduction 1On 9 April 2014 the offender, Paul Armstrong, was arraigned on an indictment dated 8 April 2014 charging him with the murder of Felipe Flores at Woolloomooloo on 2 September 1991 and the felonious slaying of Felipe Flores. On 9 April 2014 the offender entered a plea of guilty to manslaughter which was accepted in full discharge of the indictment. The basis on which the plea was accepted was manslaughter by reason of provocation. 2Prior to the entry of the plea, the trial by jury of the offender had been set down to commence on 7 April 2014. The Facts 3The facts on the basis of which the offender is to be sentenced are derived substantially from the statement of agreed facts, which was signed by the offender and the Crown Prosecutor on 9 April 2014 (the Agreed Facts), from which the following narrative is taken. There are some matters that are not agreed and which have been the subject of evidence. Separate findings will be made in respect of disputed facts. 4As sentencing judge, I may not take facts into account in a way that is adverse to the interests of the offender unless the facts have been agreed or established beyond reasonable doubt, but if there are circumstances which I propose to take into account in favour of the offender it is sufficient that they be proved on the balance of probabilities: R v Olbrich [1999] HCA 54; 199 CLR 270 at [27], per Gleeson CJ, Gaudron, Hayne and Callinan JJ. Narrative based on Agreed Facts 5Felipe Flores, who was born in 1964, was infected by the HIV virus at the time he migrated to Australia from Ecuador in 1988. He was homosexual and was known to frequent gay nightclubs and establishments in the Darlinghurst area. At the time of his death, he lived with Betsy De Leon in a unit at Kensington. 6Mr Flores told John Goosen, a friend, that he had HIV. Mr Goosen was worried about Mr Flores because he had not been in the country for long, had difficulty with the English language and did not seem to know much about HIV. Mr Goosen was concerned that he may spread AIDS to sexual partners and told him that he should inform sexual partners that he had HIV. 7Mr Flores spent the afternoon of 1 September 1991 with a friend, Philip Ovando. Later that evening they attended the Albury Hotel, Darlinghurst, with friends. Shortly after midnight on 2 September 1991, Mr Flores went to the Exchange Hotel on Oxford Street, Darlinghurst where he consumed alcohol and was observed to be intoxicated. About 2.40am, Mr Flores left the Exchange Hotel with a male friend, Rurick Ortiz-Finol, and went to a nearby ATM where he attempted, unsuccessfully, to withdraw money from his bank account. 8The offender was also at the Exchange Hotel. Between 1991 and 1994 he lived, worked and received medical attention in the Darlinghurst area. Shortly after returning to the Exchange Hotel, Mr Flores left his group of friends and began talking to the offender, who was taller than 185cm, Caucasian in appearance and had a solid muscular build. They agreed to have a sexual liaison. 9After a short conversation with the offender, Mr Flores returned to one of his friends, Rene Mock-Robertson, who described him as acting "excited" as if he had just "picked up" the male. Mr Flores returned to the offender and they continued talking. Mr Flores' friends then left the hotel. This was the last time they saw Mr Flores alive. 10After they had left the Exchange Hotel, the offender drove Mr Flores in his cream-coloured 1972 Holden Station Wagon to a secluded spot at Lincoln Crescent, Woolloomooloo. At that time Lincoln Crescent, which is about 1.5 kms from the Exchange Hotel, was known to be used as a 'lovers' lane'. There, oral sex between them took place during which the deceased's trousers and underpants were lowered. During or after oral sex the deceased told the offender that he was HIV positive. At the time the offender had a fear of contracting HIV. He lost control as a result of what was said and from concern as to the possibility of contracting HIV. He violently assaulted the deceased with such force that Mr Flores suffered fatal injuries which are described below. The offender then dragged Mr Flores a short distance to an area of dirt at the end of Lincoln Crescent and left the scene in his station wagon. 11At the time the offender assaulted Mr Flores he intended to inflict grievous bodily harm. When he left the deceased he knew he was seriously injured but thought he was still alive. The next day, and some months afterwards, the offender saw doctors to find out if he had contracted the HIV virus. 12The Crown accepts that on the evidence the offender's loss of control was induced by Mr Flores' words which were said during or immediately after sexual contact and which affected the offender. In 1991 there was considerable fear in the community as to the effects on a person who contracted HIV. There was also concern and confusion as to the ways in which the virus may be contracted. In 1991, the effect of an ordinary person learning of possible exposure to the virus would be very different than it would be today where more is known of the virus and the ways in which it can be contracted and where treatments are significantly more effective. The Crown accepts that, taking into account the community concern in 1991 as to contracting HIV, it could have induced an ordinary person in the position of the offender to have so far lost self-control as to have formed the intent to inflict grievous bodily harm. 13Robert Small, a security guard, began patrolling the wharf area in Woolloomooloo near Lincoln Crescent shortly after 2.30am. He had first seen a white tabletop truck near an electricity substation at Wharf 11, near Lincoln Crescent. He heard a male voice nearby saying "do you think he saw us". He continued to patrol the Wharf to its northern end. Some time between 2.30 and 3.00a.m. he heard an alarm sounding from the direction of the Woolloomooloo Hotel. As he walked towards the hotel he saw a light cream-coloured early model Ford or Holden station wagon with one door painted in a different colour on the road close to the substation. The vehicle was the one the offender had used to drive Mr Flores to the location and in which he drove away from the scene. 14Mr. Small went to a hotel near the southern end of the wharf. When he returned to his office, which was on the wharf, he saw the truck drive off. He then saw a patrolling security car with a spotlight drive along the road and leave. From the northern end of the wharf he heard what sounded like a 'huh' sound, as if someone was out of breath. He then heard a sound from the fenced area near the middle of the wharf and saw a male, who was the offender, go to the driver's door of the cream coloured station wagon, get in and drive off. He saw the car make a u-turn and then drive south, without its headlights on. 15Shortly before 3.38am Mr Small checked the power substation and found Mr Flores nearby in a park, lying on his back, naked from the waist down with his jeans and underpants around his ankles and pulled over his shoes. This was the location that Mr Small had seen the male walk from before getting into the station wagon and driving away. Mr Small observed some movement in the eyes of Mr Flores consistent with his still being alive. 16By the time ambulance officers arrived at about 3.50am Mr Flores had died. Police arrived at about 4.00am and immediately established a crime scene. 17Forensic examiners ascertained that the body had apparently been dragged a short distance into the position where it had been found. Detective Khoudair took photographs of the deceased and of his clothing. 14 photographs are annexed and form part of the facts. Detective Khoudair and the forensic pathologist, Ms Schwartz, both observed a patterned injury to the head consistent with a shoe. 18On 3 September 1991 a post mortem was carried out. It was noted during the examination that Mr Flores had suffered severe internal injuries. These included three fractured ribs on the right side and two on the left side and a large laceration extending between both atria of the heart. Both lungs were congested and had areas of contusions. The diaphragm had extensive bruising. There was a large laceration to the liver which almost split the liver in half. There was bruising to the spleen. There was also extensive bruising to the scrotum and a laceration to the groin area. An impression was also noted on the deceased's face which is believed to be a shoe print. The death was attributed to 'multiple injuries'. 19During the post mortem a number of exhibits were seized for further examination, including clothing, tissue and other samples taken from the body including fingernail clippings from both the left and right hand of the deceased. 20Detective Sergeant Barker from the Homicide Unit was the Officer in Charge of the Investigation from 1991 until 1995. In 1995 Coroner Abernathy conducted an inquest into Mr Flores' death and found that he died on 2 September 1991 at Woolloomooloo of multiple injuries inflicted by a person or persons unknown. 21No one was arrested or charged in relation to the death of Felipe Flores either during the initial investigation or after the inquest. 22In 2008, police from the Unsolved Homicide Team reviewed the investigation into Mr Flores' death. Further forensic examinations and analyses were undertaken as a result of which DNA material was located from Mr Flores' fingernails. DNA profiles were obtained from fingernail clippings from both hands. 23There was a major DNA profile of an unknown male in a mixture on a fingernail on the right hand, which was expected to occur in fewer than 1 in 10 billion individuals in the general population. The minor profile of the same unknown male was located on a fingernail on the left hand, which was expected to occur in 1 in 430 million individuals in the general population. 24In 2008, the DNA profile of the unknown male person recovered from the fingernails was then matched on National Criminal Identification DNA Database with the offender's profile. Enquiries revealed the offender was then residing in Tasmania. As a result, further investigations began into the involvement of the offender in Mr Flores' death. 25Further forensic examinations were conducted and it was later found that the offender's DNA profile was the same partial profile as that recovered from Mr Flores' shirt, which is expected to occur in 1 in 860 individuals in the general population. It was also discovered that the offender had the same DNA profile as a minor mixture recovered from another fingernail on the left hand, which is expected to occur in 1 in 580 thousand individuals in the general population. 26On 3 September 1991, the day after the offender killed Mr Flores, he attended 'Immediate Health Care' and was seen by an attending medical practitioner. In February 1992 the offender attended another medical practitioner and samples were taken for testing for sexually transmitted diseases. 27Inquiries with the NSW Roads and Traffic Authority revealed that the offender was the registered owner of motor vehicle GAA 316 which was a cream-coloured 1972 Holden station wagon. Further records disclosed that the same vehicle received various parking tickets when it was parked from 16 September 1991 to 30 October 1991 on Waine Street, Surry Hills, which is a short distance from the Exchange Hotel. 28On 4 December 2008, the offender attended the Launceston Police Station and agreed to an electronically recorded interview with police. The offender acknowledged in the interview that in 1991 he was bisexual, that he had had casual sexual relations with other males and that he used to frequent the Exchange Hotel. During the interview the offender was shown a photo of a man whom he was informed was Mr Flores. The offender said that he could not recall ever having seen the person before, including in any casual sexual relationship. The offender offered no explanation when he was told that his DNA profile had been recovered from under the fingernails of the deceased. In the course of the interview, the offender denied reading any publicity about the murder and denied ever going to Lincoln Crescent Woolloomooloo. 29Following the interview, the offender was arrested, charged with murder and extradited to New South Wales. 30On 24 December 2008, Detectives Hungerford and Packham visited the offender at Parklea Detention Centre. During the visit the offender made "off the record" admissions to Detective Hungerford, that implicated him in Mr Flores' death. The offender said to Detective Hungerford: "If I was to tell you off the record that him and I went down there and had oral sex and he then told me that he had HIV and I just lost it and bashed him. I did not mean to kill him and I left him there he was still alive. What would happen to me then?" 31Detective Hungerford asked why he did not say this in the earlier interview and the offender said: "I was taking legal advice and if you remember when it got to the question about the murder I said no comment." 32Detective Hungerford asked how he knew the person had died and the offender said: "I heard it on the news." 33When Detective Hungerford said he wanted to record what the offender had just said the offender said:- "No I am not speaking on camera until I speak with my lawyer I am not signing anything until I speak with my lawyer or talking about it anymore until I talk to my lawyer. I will talk to you after I have spoken to my lawyer." 34Detective Hungerford informed the offender that he had arranged with Corrective Services to see him on 28 January 2009. On 20 January 2009 Detective Hungerford returned a call from the offender's legal representative who told him that the offender was not prepared to speak to him and that the appointment for the 28 January should be cancelled. 35In September 2009, investigating police located Jacinta Webber. Ms Webber had lived with the offender from February 1991 until early October 1991 at which time she had been a male and her name had been Stephan Webber. 36On 15 September 2009, a statement was taken from Ms Webber. In that statement Ms Webber said that close to the end of the time they were living together the offender came home in the early hours of the morning. She described his appearance at the time he arrived home. Ms Webber gave evidence in March 2010 at the offender's trial (which resulted in a conviction that was later quashed by the Court of Criminal Appeal) as to the occasion and her observations. The offender disputes the evidence. 37On 29 September 2009, in a further statement, Ms Webber outlined that in the two or three weeks following the morning the offender returned home, there had been an article in the "Star Observer" newspaper concerning the bashing murder of a gay male in the Woolloomooloo area, near Mrs Macquarie's chair. The report stated that there had been a number of murders of gay men in the then recent past. Ms Webber set out in the statement conversations she had with the offender on that occasion. Ms. Webber recalled that the conversations with the offender were in September 1991. Ms Webber gave evidence in the trial of the occasion and the conversations. The offender disputes the evidence. 38Ms. Webber gave the following evidence at court about the offender: "Paul's biggest fear back in those days was the HIV AIDS virus. Before we started a relationship we both had HIV tests." 39Ms. Webber was aware that the offender's brother, Jamie, was diagnosed with HIV AIDS in March 1988. Disputed Facts 40A principal disputed fact is whether, as the Crown contended, the offender appreciated that he had killed Mr Flores either at the time or shortly after his death or, as the offender contended, he was unaware that he had killed Mr Flores until he was contacted by Detective Hungerford in Tasmania in December 2008. The other disputed facts are those derived from Ms Webber's evidence set out above. 41The Crown adduced the following evidence on the disputed facts: (1)The transcript of evidence given by Jacinta Webber at the trial; (2)Trial exhibit O, being two photographs of the offender; (3)The transcript of evidence given by Detective Hungerford at the trial; (4)Excerpts from the transcript of the recorded interview with the offender on 18 December 2008; (5)Part of trial exhibit AC which comprised photographs and the offender's Medicare history; (6)Trial exhibit AE, being the offender's medical records from June 1991; (7)Trial exhibit AF being newspaper reports regarding the death of Mr Flores; (8)Three certificates of analysis of Dr David Bruce dated 19 February 2009, 25 March 2009 and 28 March 2014. (9)Transcript of a recorded telephone call between the offender and his father on 6 April 2009. 42Ms Webber was not required for cross-examination at the sentence hearing. 43The offender relied on the following evidence on the disputed facts: (1)Transcript of evidence given at the inquest and at the trial by Dr Liliana Schwartz, a forensic pathologist who examined the deceased at the place of his death in Woolloomooloo and also conducted an autopsy on his body, together with a diagram prepared by her of injuries to the deceased. (2)Transcript of evidence given at the trial by Detective Khoudair as to the mechanism by which the injuries sustained by the deceased were inflicted. (3)An extract of a statement dated 2 September 1991 of Betsy De Leon, who lived with the deceased, in which she deposed that the deceased was not an aggressive man who was not a good fighter. (4)An extract of evidence given at the trial by Royce Lockhart who was a good friend of the deceased who deposed that the deceased did not respond physically, was not a good fighter and was of slim to medium build and 5' 6" or 5' 7" tall. (5)An extract of evidence given at the trial by Philip Ovando who deposed to the deceased's intention on the night he was killed to stay at the Exchange and have a good time as he intended not to go to work the next day. (6)An extract of evidence given at the trial by Rurick Otriz-Finol as to the deceased being intoxicated on the night he was killed. (7)Two statements given to police by Ms Webber dated 15 September 2009 and 29 September 2009. (8)Ms Webber's Medicare records. (9)Detective Hungerford's notes relating to Ms Webber dated 9 September and 21 September 2009. (10)A publication entitled "Yamba Floodplain Risk Management Study" which indicated that there was no flood in Yamba in 2005. 44Ms Webber was born in 1968 and was about 23 in September 1991 and 42 at the time of the trial. She changed her name to Jacinta some time in 1994. She was in an intimate relationship with the offender in 1991. She was aware that he was not faithful to her. She was not aware that the offender had a car. Indeed she tried to talk him out of acquiring one. They separated in late 1991 and did not stay in contact after that. 45Ms Webber gave evidence at trial that she saw the offender come home with marking on his clothing on only one occasion which she said was in about September 1991. His clothing had blood on it, his shirt was ripped and there were scratch marks on the side of his face and also on his chest. Ms Webber particularly remembered the occasion because she had given the offender the shirt that had been damaged and it had cost $120. The offender told her that he had been involved in a fight with one of the patrons at work. 46Ms Webber also gave evidence that she had seen an article about a gay murder in Woolloomooloo in the Sydney Star Observer, which came out fortnightly during that period. She drew it to the offender's attention and said, "Look, another gay murder." She explained her comment as follows: "Back in the late 80s, early 90s, there was a lot of gay bashings and murders going on." 47Ms Webber gave evidence that the offender did not respond to the comment. However, about a couple of weeks after that conversation, they were having an argument and the offender told her that he had hurt someone pretty badly in Woolloomooloo but when he had left, the man was still alive. Ms Webber said that this second conversation, which took place in September 1991, occurred only a couple of weeks after the offender had come home with blood on his shirt and scratch marks. She gave evidence that she had never mentioned the second conversation to anyone until police contacted her in 2009. When she was asked why she did not do anything about the conversation she said: "Paul made a threat against me and my family. He said that he had already killed one man and there was nothing stopping him from killing somebody else, let alone me or my family, and when Paul made a threat, he was serious." 48Ms Webber said that the offender had made the threat in September 1991. 49The Crown tendered three articles from the Sydney Star Observer that concerned the death of the deceased. The first, which had the headline, "Seventh gay murder: witnesses sought" read in part: Police are seeking witnesses for what is understood to be the seventh gay murder in Sydney in less than three years. In the early hours of Monday morning, 2 September, the body of Felipe Marcelo Flores, 27, was found by a security guard in Woolloomooloo. Flores had been bashed and kicked to death and was found with his jeans pulled down around his ankles with no money or identification. Detective Sergeant Brian Barker of Sydney South Police said that the security guard approached the location at about 3.30 am after hearing noises. As the guard approached, he saw a light coloured station wagon drive away. The exact location was at the end of Lincoln Cres, between Wharf 11 and the Boy Charlton Pool. Flores of Kensington was last seen by friends at the Exchange Hotel at about 2.30 am. He left the venue without notifying friends. Police want to talk with anyone who may have seen Flores leave the Exchange, or at any stage during the evening. ... Police believe Flores went to the murder location by car or taxi, as he was found dead only 45 minutes after he was last seen by friends. We believe he went willingly to a certain point and he may have gone with a stranger to this particular secluded spot, Barker said. Police believe the motive was robbery, as Flores was found with no money or identification. It is difficult to make it known if it was a sexual attack or poofter bashing. It has all the earmarks [sic] of a gay murder. . . . 50The second article from the Sydney Star Observer was published on 4 October 1991 with the headline "Lead on Flores murder". The article contained a further request for information and a contact number on which to contact police. 51The third article from the Sydney Star Observer was published on page 4 of the issue dated 18 October 1991. The headline, "Police plea on mystery murder" preceded the following paragraph: "Police have made a plea to the gay community to come forward with any information on the murder of Felipe Flores." 52The article repeated the basic facts from the earlier article and concluded with a contact number for a named police officer. 53The fourth article from the Sydney Star Observer was published on page 4 with the headline: "North Coast Murder Clue". It contained a report from two men who had observed men behaving suspiciously in the Exchange Hotel on 2 September 1991. The article said in part: "The men who come to Sydney from time to time said they have seen a group of men who looked like football players acting suspiciously at the Exchange. They told me the guys they have seen are homophobes and each one stands in a different corner of the venue and tries to attract other guys." 54The Crown also tendered a press release dated 3 September 1991 issued by the police headed "Detectives Seek Assistance in Flores Murder Inquiry", as well as articles from the mainstream press, including a short article headed "Wharf Murder" from the Sydney Morning Herald on 3 September 1991 and a longer article from the same publication on the following day headed: "Police suspect 7th gay murder". The Crown also tendered two articles from the Daily Telegraph Mirror. The first, dated 3 September 1991, had the headline, "Grisly pool find: man battered dead", and the second, dated 4 September 1991, was headed "Murder a Mystery" and published a photograph of the deceased. 55Detective Hungerford had learned of Ms Webber's existence and relationship with the offender through the interview he had conducted with the offender in 2008 and as a result of records that showed they were the joint owners of a motor vehicle. 56In September 2009, when Detective Hungerford first spoke to Ms Webber, he told her that Paul Armstrong had been arrested for the murder of Mr Flores who had died on 2 September 1991. Detective Hungerford did not give Ms Webber any details about how Mr Flores was killed or that he was HIV positive although he did tell her where the offence had occurred. He asked her if she knew anything. At the trial her evidence was: "I said 'Detective Hungerford, leave it with me for a couple of days,' because 20 years is a long time to remember, and I'd phone him back." 57Ms Webber spoke to Detective Hungerford on the phone a couple of times and then met him about a week later at a police station out of New South Wales, where she gave a statement to police dated 15 September 2009. At the end of the interview, she told him that if she remembered any more she would contact him. There were further telephone conversations between them including one that occurred on the evening of 15 September 2009 in which Ms Webber told Detective Hungerford that there were no further conversations with the offender apart from the one about what had happened when he returned with the torn shirt. 58On 21 September 2009, Ms Webber mentioned the Star Observer article for the first time to Detective Hungerford and told him about the second conversation. Ms Webber gave evidence at the trial that she did not recall the second conversation until some time after she had spoken with him on the evening of 15 September 2009. 59When she told Detective Hungerford about the second conversation, Ms Webber was worried that she would be in trouble for not having gone to police earlier and raised the issue with Detective Hungerford, who told her that he did not think she would be in trouble. Nonetheless Ms Webber asked for an immunity. Later on 21 September 2009, Ms Webber rang Detective Hungerford again. She had been drinking and was intoxicated. She told him that she was fearful and wanted to change her telephone number and that she would notify him of her new number. 60On 29 September 2009 Ms Webber gave a second statement in which she set out the conversation about the article in the Sydney Star Observer and the threats made by the offender to her. The version she gave in that statement was: I said to Paul, "Another gay murder at Woolloomooloo." He said, "I hurt a man very badly in that area that night, but when I left, the man was still alive." (I did not question Paul about this further (sic) about this comment he made. I never questioned Paul about anything as I was scared of Paul and I am still scared of Paul today. Whenever I had questioned Paul in the past it always ended up in an argument and I felt intimidated by his standover manner so I never questioned him.) A few hours later the same day Paul and I were having a heated argument about something. I cannot recall what it was about. But Paul said, "I killed one guy and there is nothing stopping me from killing you or another member of your family if you ever talk about what I told you before." Shortly after this Paul went to work. 61Ms Webber explained in her evidence at the trial that she felt obliged to make the second statement because of what she had remembered, although she was afraid that she might get into trouble for revealing what she had been told by the offender, because she thought that it might make her an accessory. These two statements were tendered on behalf of the offender at the sentence hearing. 62In the second statement, Ms Webber said that she remembered that the second conversation had occurred in September because she was the victim of a sexual assault in September which occurred between the time the offender came home with blood on his shirt and the time the offender told her he had hurt a man very badly. She said that she recorded the sexual assault in her diary but it had been destroyed in a flood in Yamba in about 2005. She gave evidence at the trial that she had not told the offender about the sexual assault because he would have blamed her. In the second statement Ms Webber said that she did not record the conversation with the offender in her diary in case he read her diary. In her evidence at trial she said that this had been incorrectly recorded and that she had said that she had recorded the second conversation in her diary. 63In the trial, Ms Webber was cross-examined about the occasion on which she was sexually assaulted in 1991. She said that she went to the doctor a couple of days after the assault. She was shown her Medicare records that recorded consultations on 5 May 1991, 26 May 1991, 27 May 1991, 2 June 1991, 30 July 1991, 6 August 1991, 30 October 1991 and visits on 4, 5 and 11 November 1991. No visits were recorded between 6 August and 30 October 1991. Ms Webber was adamant that the sexual assault had occurred in September 1991 and that she had sought medical attention for it in that month. 64At the trial it was also put to Ms Webber that the offender had come home with a bloodied shirt on 2 June 1991. Ms Webber was certain that there had only been one such occasion and it had occurred in September 1991. When the offender's medical records were put to her that showed that he had suffered injuries to his face on 2 June 1991, Ms Webber repeated that it was her recollection that it occurred in September 1991. Ms Webber admitted that she was a recovering alcoholic. The offender's evidence on the disputed facts at the sentence hearing The record of interview in December 2008 65In his record of interview in December 2008 the offender told police that he had been in a relationship that lasted for five years with Peter Wallis, with whom he co-habited for that period, which ended in late 1995. The offender denied that he had access to a motor vehicle while he was in Sydney. 66Police asked the offender about various places where he had lived. Among the addresses put to him was Unit 69/219 Chalmers Street, Strawberry Hills. The offender said in response: "Yes, I lived there with a friend who I can't remember now. It's a two-bedroom place." 67The offender told police that he was not "seeing" the man he was living with in Strawberry Hills. He said that he was seeing someone called Steven or Stefan but he could not remember his surname. The police then put to the offender that he had a Holden Station Wagon that was registered in his name jointly with S J Webber. The offender said that he did not remember much about the car and did not recall Mr Webber, as he then was, having anything to do with the registration. 68The police then put a series of photographs to the offender who identified Stefan Webber in the photographs and also identified the unit in Chalmers Street, Strawberry Hills. 69The offender denied ever going to Lincoln Crescent, Woolloomooloo but said that he had been to the Domain and the Botanical Gardens and the Woolloomooloo Bay Hotel for dinner a couple of times when he was living in Potts Point. 70The police put the offender's Medicare records to the offender and asked him about the consultation that occurred on 3 September 1991, the day after Mr Flores was killed. He was asked whether he recalled why he went to the doctor on that day. At first he said that he had no idea. Then he said: "Oh, or do I. I think Peter and I had an altercation where I actually cut there." 71The offender then showed police a cut mark on his hand and explained that he and Mr Wallis had been having fish and chips and had an argument as a result of which the offender had brought his hand down on the hand towel rack and cut his hand. 72It was an Agreed Fact that in the recorded interview in Tasmania in 2008 the offender was questioned in relation to his DNA profile being recovered from under the fingernails of the deceased but could offer no explanation. The topic of DNA was raised after the offender had given the explanation, which I find to be false, about cutting his hand on the towel rail in September 1991. The intercepted telephone conversation between the offender and his father on 6 April 2009 73The Crown relied on a transcript of a telephone conversation between the offender and his father on 6 April 2009 in the course of which the offender told his father about the weight of the DNA evidence against him. The following exchange then ensued: Accused According to my lawyer the only thing they have is the DNA so my lawyer is going to check out what type it is, the validity of it how it was stored for the last 17 to 18 years. Peter Oh right, yeah they might had nothing on you then mater. Accused Yeah they probably want to strike up a bargain, like drop it from Murder down to Manslaughter. Peter You are not having that are you. Accused Well we have not plead anything yet, because we do not know the strength of the DNA. Peter You won't plead guilty to nothing at the moment Accused No Peter No Accused Because when Hungerford came out I told him hypothetically if I did this rather, rather, rather he wanted to put that down on video tape and I said not until I have spoken to my lawyer, that was Christmas Eve. He then went on and wrote it in his notebook after he left the jail and got his mate to sign the bottom of it to say I was cautioned and that did a hypothetical rather, rather, rather and that was a load of crap. The offender's evidence about the disputed facts in the sentence hearing 74The offender gave evidence in the sentence hearing that after he and Mr Flores had performed fellatio on each other, they were both lying on the ground. Mr Flores still had his trousers and underwear down below his knees. The offender was dressed but was not wearing his shoes as it was warm. At this point Mr Flores told him that he had contracted the HIV virus which the offender considered to amount to a death sentence imposed on him. His immediate response was to consider how long he would live, whether he would be walking around like a human skeleton and how he would manage without his family. He became very angry and picked up a shoe and started hitting Mr Flores around the face and head with it. Mr Flores tried to cover his face. The offender, who then weighed more than 100 kgs, then "jumped" on his chest twice with his buttocks. He said that he squatted on his chest because he "just wanted to knock the wind out of him." He said that he did not intend to damage his internal organs. 75The offender gave evidence that he then lifted Mr Flores up by his arms and dragged him along the ground to a darker place because he was concerned that if anyone had come across Mr Flores in his state of undress Mr Flores would have been embarrassed. Mr Flores was groaning at the time. The offender said in cross-examination that he did not think of pulling Mr Flores' trousers up to cover his private parts. 76The offender then drove home. The offender gave evidence that there was no blood on his shirt. He did not discuss what had occurred with anyone and in particular he did not discuss the matter with Ms Webber, with whom he was then living in a relationship. He did not recall discussing with Ms Webber an article in the Sydney Star Observer about gay bashings and homicides, although he accepted that he may have. 77The offender said that he first became aware that Mr Flores had died when he spoke with Detective Hungerford in Tasmania on 4 December 2008. When Detective Hungerford showed him a photograph of Mr Flores he did not recognise him. 78The offender's counsel, Mr Nicholson SC, put to the offender the evidence he had given at the trial. He put that he had been asked in the trial whether in 1991 he was very frightened about coming into contact with the HIV virus, he answered, "No, I wasn't". The following exchange then took place in the sentence hearing: Q. Well, what do you say now about whether you were frightened about the HIV virus? A. I wasn't frightened, I was terrified. Q. So what do you say about the answer you gave, or at least the answer that is recorded as you giving, that you were not frightened? A. Correct, correct. 79When Mr Armstrong was asked by his counsel whether he had thought about Mr Flores' death at any point since his involvement in it, he gave the following responses: "I was actually shattered to find out that I was actually the cause of somebody's death." "I've thought of nothing else since I found out that I was the cause of Mr Flores' death." "My moods go up and down. I have had a couple of states of depression. There are some nights where I close my eyes and I actually see the picture of the deceased." 80The following exchange also occurred with his counsel: Q. Is your regret a self-centred regret, that is because it sees you locked up and so on, is that the focus of your regret? A. No. My regret is that Mr Flores didn't have the time to spend with his family and then I took him away from his family. 81The offender was cross-examined about the apparent inconsistency between his statement in the Agreed Facts that he knew that Mr Flores had died because he had heard it on the news and his evidence at the sentence hearing that he only found out that Mr Flores had died when Detective Hungerford spoke with him in Tasmania in 2008. The offender said that he meant by "news" that he had heard it on the grapevine because the police had first contacted his father. 82At the sentence hearing, the offender sought to explain the evidence he had given on oath at the trial in which he denied his involvement in Mr Flores' death by saying: "Yes, I denied it, because I didn't want to admit it to myself." The offender's credibility 83The offender was an unsatisfactory witness. He began with the obvious difficulty that his plea to manslaughter directly contradicted what he had told police in the recorded interview on 18 December 2008 as well as his evidence on oath at the trial that he had not left the Exchange Hotel with Mr Flores and that he had not had anything to do with his killing. His defence at trial had been conducted on the positive basis that it was someone else who had killed Mr Flores. 84I do not accept anything the offender said unless it was corroborated or amounted to a statement against interest. He has shown a repeated preparedness to lie in what he perceived to be his interests at the time. The inconsistencies between what he told Detective Hungerford in the recorded interview and what he told him in the "off the record" component, which was corroborated by what he told his father in the telephone conversation in April 2009, are an example of this. The inconsistency between his plea and his evidence before me on the one hand and the sworn evidence he gave in his defence at the trial on the other are another example. 85The offender's dishonesty is evident from the deliberately false evidence he gave at the trial including: (1)His denial that he took Mr Flores to Woolloomooloo in his car; (2)His denial that he had sex with Mr Flores at Woolloomooloo; (3)His denial that he assaulted Mr Flores; (4)His evidence that he was blasé about the possibility of contracting AIDS. 86The explanation he gave in re-examination in the sentence hearing as to his false evidence that "I was in self-denial" was deliberately untrue. It was also inconsistent with his admission, also in re-examination, that when he spoke to his father in April 2009 in the recorded telephone conversation, he intended to acknowledge "publicly" (at least to his father) that he had caused Mr Flores' death. 87The offender's aptitude for semantic pedantry was demonstrated by his statement that it was true that he was not scared of AIDS on the basis that he was terrified. However, this was insufficient to explain why he had given false evidence at the trial that he was blasé about the risk of AIDS. In my view his evidence that he was blasé about AIDS was false evidence that was given to make the jury believe that he would not have lost control of himself had Mr Flores told him that he was HIV positive after they had had sex. His attempt to explain that piece of false evidence by saying, in his evidence at the sentence hearing, that he was not brought up by his mother to show his vulnerable side and that it was "my business, not the court's", "I'm a very private person. I don't let people into the real me" was, in my view, wholly disingenuous. He was, in fact, scared of AIDS, although he did little to minimise his risk of infection. 88The offender's opportunism in accommodating or explaining apparently prior inconsistent statements was also demonstrated by his insistence that when he told Detective Hungerford that he knew that Mr Flores had died because he had heard it on the news he was actually referring to hearing "the news" from his father that Detective Hungerford wanted to speak with him. I am satisfied that "the news" which informed him of Mr Flores' death was either broadcast or published in September 1991. 89I regard the offender's evidence that the reason he dragged Mr Flores to a dark place was to protect him from embarrassment as not only absurd but also redolent with sophistry. I am satisfied to the requisite standard that the offender dragged Mr Flores to a dark place so that he would not be discovered in sufficient time for the offender to be associated with the assault perpetrated on him. 90I am satisfied that when the offender was interviewed by police in December 2008 he was consciously trying to lay a false trail by referring to his relationship with Mr Wallis which he said lasted for five years and covered the relevant period. He understood the need to explain Stefan Webber's existence when confronted with the registration papers which recorded him as a joint registered owner of a motor vehicle. His reference to the unit in Strawberry Hills as having two bedrooms was misleading; his denial that he and the man he was living with were in an intimate relationship was deliberately false, as was his statement in the recorded interview that he could not remember who he was living with at that address. The Strawberry Hills unit was where he lived with Ms Webber. There was no issue about this since his counsel at the trial put to Ms Webber that they had moved to Strawberry Hills in about October 1991. I infer that the motive for the falsehoods was that the offender knew full well that Ms Webber was capable of implicating him in Mr Flores' death because of the admissions he had made to her at the time. I do not accept his evidence that he did not regard himself as having anything to fear from the police contacting Ms Webber. 91I am not satisfied that the offender had sex with Mr Flores at the Exchange Hotel before they left for Woolloomooloo in the car. The offender was unable to explain how his DNA came to be on the deceased's fingernails at the recorded interview. I am satisfied that he fabricated the suggestion that he had had sex with Mr Flores at the Exchange Hotel in order to explain the presence of his DNA on Mr Flores' fingernails which formed a basis for a hypothesis consistent with innocence: namely that he had had sex with Mr Flores at the Exchange Hotel but had not gone to Woolloomooloo with him. Ms Webber's credibility 92When Ms Webber was contacted by police in 2009 she knew little about the investigation into Mr Flores' death. What she told police was not contaminated by what police had told her, since they told her very little. Importantly, she was not told how Mr Flores was killed. There was nothing in the press articles in evidence to the effect that Mr Flores was still alive for a time. The officer did not disclose this fact to Ms Webber. The only way she could have known that matter was if the offender had told her. 93The weight to be given to her evidence depends, in part, on its correspondence with the objective and known facts. The version Ms Webber gave of what the offender told her in September 1991 accords with the Agreed Facts: namely that he had hurt someone pretty badly in Woolloomooloo but that when he had left the man was still alive. Further when the offender threatened her, he told her that he had already killed a man, which was true since he knew that he had killed Mr Flores. 94It was, in substance, contended on behalf of the offender that Ms Webber's version accorded with her interest at the time, which was to minimise her potential exposure as an accessory after the fact. Accordingly, as I understood the argument, the offender submitted that the correspondence between her version and the actual facts was fortuitous, rather than an indication of her truthfulness. I do not accept this submission. Ms Webber's exposure to criminal prosecution was not obviously diminished by the circumstance that the victim was still alive when the offender left him. As long as he died as a result of the wounds inflicted, the offender could be exposed to prosecution for murder and Ms Webber, if she assisted the offender in some way, had a potential exposure as an accessory after the fact for whatever crime he committed. Furthermore there was no evidence that Ms Webber was capable of drawing such distinctions, even if any were open to be drawn. 95I am not satisfied that Ms Webber had any other motive but to tell the truth when she deposed to the two conversations she had had with the offender. I accept that she was fearful of him and that it caused her substantial stress to speak to Detective Hungerford and to incriminate the offender. Had she harboured any desire for revenge against the offender, she would, in my view, have come forward in response to any one of the numerous requests from police for information that were published in the Sydney Star Observer and the mainstream press at the time and in the months following Mr Flores' death. The content of the two conversations she had with the offender about Mr Flores' death explained, in my view, the reason for the offender to lie to police about his personal life at the relevant time and to identify Mr Wallis as his then partner. He had a clear motive to prevent the police from interviewing Ms Webber, since she, of all people, had the capacity to implicate him in the murder. I am satisfied that he understood the significance of her evidence since he appreciated that the Crown case otherwise depended on DNA evidence, which could be explained by a casual sexual encounter with the deceased at the Exchange Hotel. 96I am satisfied that Ms Webber was mistaken about the chronology of the sexual assault of which she was a victim, the occasion when the offender came home with a torn shirt and blood on his body and the first and second conversations with the offender. 97The offender has established, from Ms Webber's Medicare records, that it is probable that the assault on Ms Webber took place on in May 1991 or in late October 1991. The absence of any medical record for September 1991 makes it unlikely that it occurred in that month. The offender has also established to the relevant standard that the only occasion on which he returned to the residence he shared with Ms Webber with a bloodied and torn shirt was in June 1991, since this was the occasion on which he had been assaulted after work. A contemporaneous description of the incident was recorded by one of the offender's treating medical practitioners on 2 June 1991. I am not satisfied that Mr Flores inflicted any material injury on the offender at all. Although the offender may have been cut, I am not satisfied that there were any cuts to his face or blood on his shirt. It follows that Ms Webber was also mistaken about the timing of that event relative to the publication of the article about Mr Flores in the Sydney Star Observer. 98Mr Nicholson also relied on there being no flood in Yamba in 2005 and the closest flood in time as having occurred in 2001, as indications of the unreliability of Ms Webber's evidence about time. I accept, as my findings above indicate, that Ms Webber's evidence about time is not necessarily reliable. I do not see the timing of the flood that she says destroyed her diary or indeed whether she recorded relevant conversations in her diary as adversely affecting her credibility in any material way. Mr Nicholson tendered contemporaneous advertisements of shirts to show the implausibility of Ms Webber having paid $120 for the shirt that she gave to the offender. Whether or not this was the truth or an exaggeration, I accept Ms Webber's evidence in the respects set out. 99It does not follow from a witness' unreliability about dates or the relative timing of events that a witness is either untruthful or generally unreliable. It is common ground that the offender did suffer an assault at work which resulted in injury to him in June 1991 and in respect of which he sought medical attention. The series of consultations recorded in Ms Webber's Medicare records from late May to early June 1991 and also in late October 1991 are consistent with her having been the victim of a sexual assault for which she sought medical attention during either one of those periods. 100Furthermore the Crown tendered four articles from the Sydney Star Observer. I am satisfied that the first of those articles was the one which Ms Webber raised with the offender since it concerned not only the killing of Mr Flores but it also listed several other so-called gay murders. The publication of this article and the fact of and timing of Mr Flores' death are the fixed points in time by reference to which the conversations of which Ms Webber gave evidence are to be measured, since they have been objectively established and have a connection with the conversations. 101It follows from my acceptance of Ms Webber's evidence about the two conversations that I am satisfied to the requisite standard that the offender told her that he had bashed a man at Woolloomooloo but that when he had left he was still alive and that he later, either in September 1991 or October 1991, appreciated that Mr Flores had died as a result of the attack and, accordingly, that he had killed him. However, irrespective of Ms.Webber's evidence, I am satisfied that the offender knew in September 1991 that he had killed Mr Flores by reason of his admission to Detective Hungerford in December 2008 that he had heard it on the news. 102I reject the offender's evidence that he did not know that Mr Flores had died until Detective Hungerford interviewed him in Tasmania. I am satisfied that the offender thought that he had got away with killing Mr Flores, whose brutal killing could readily be attributed to so-called gay bashings that were prevalent at the time. When Detective Hungerford confronted the offender with the existence of DNA evidence against him, he falsely denied his involvement, while at the same time, exploring the possibility of pleading to manslaughter, with a view to minimising his sentence. His desire to save his own skin at the expense of both truth and justice was further exemplified by his giving false evidence on oath at the trial and also before me in so far as he denied the conversations with Ms Webber. 103I am not satisfied that Mr Flores was capable of struggling with the offender or that he caused him any injury. The nature and extent of his injuries as well as the significant disparity between his size and that of the offender's makes it unlikely that Mr Flores inflicted harm on the offender. It was accepted by the Crown that the presence of the offender's DNA on Mr Flores' fingernails was consistent with a consensual sexual act. For the reasons given above, I consider that Ms Webber was mistaken in so far as she believed that the offender's bloodied and scratched appearance corresponded with his appearance when he returned to the unit in Strawberry Hills after killing Mr Flores. I do not accept that Mr Flores even managed to lacerate the offender's skin. Sentencing - manslaughter 104I was taken to a number of cases involving the sentencing of offenders for manslaughter. It is well recognised that of all offences, manslaughter produces the greatest variety of circumstances affecting culpability and consequently there is a substantial range in the sentences imposed for this offence: R v Lavender [2005] HCA 37; 222 CLR 67 (Gleeson CJ, McHugh, Gummow and Hayne JJ). For this reason, statistical analysis of sentences imposed for manslaughter is not helpful. 105The fundamental touchstone for sentencing such cases is that there has been an unlawful taking of human life for which the offender is criminally liable and for which he must be sentenced to imprisonment. Maximum penalty 106The maximum penalty is an indication of the relative seriousness of the offence (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31], per Gleeson CJ, Gummow, Hayne and Callinan JJ) and is therefore to be taken into account. The maximum term of imprisonment for manslaughter is 25 years: s 24 of the Crimes Act 1900 (NSW). There is no standard non-parole period. The objective seriousness of the offence 107The offender has pleaded guilty to manslaughter on the basis that when he assaulted Mr Flores he intended to cause him grievous bodily harm and that at that time of the assault he had lost his self control as a result of Mr Flores telling him that he was HIV positive and that Mr Flores' conduct could have induced an ordinary person in the offender's position to have so far lost self control as to have formed an intent to inflict grievous bodily harm upon him. 108The offender admitted in his evidence at the sentence hearing that the first time the topic of HIV was raised between Mr Flores and the offender was after they had had oral sex and Mr Flores volunteered that he was HIV positive. It follows from this admission that the offender made no enquiry as to whether Mr Flores was HIV positive before engaging in oral sex with him and, accordingly, Mr Flores did not mislead him about this HIV status. The fact contained in the Agreed Facts about the advice Mr Goosen had given Mr Flores about disclosing his HIV status to any sexual partners, together with the circumstance that it was Mr Flores who initiated the disclosure, indicates that Mr Flores did not hide his HIV status from the offender. The offender simply did not make any inquiry before engaging in oral sex with Mr Flores. The offender admitted in the sentence hearing that he was prepared to engage in acts of a sexual nature not knowing whether that person may or may not have HIV. 109In re-examination in his evidence at the sentence hearing the offender said that he lost his temper and therefore his capacity to control himself for no more than four or five minutes and that by the time he had finished assaulting Mr Flores he had started to calm down. It follows that the offender was no longer out of control when he dragged Mr Flores to a darker place. I am satisfied that he did so in order to reduce the prospects of his involvement being revealed by his proximity to the scene, delay the discovery of Mr Flores and to remove any chance that his life could be saved. 110I do not accept Mr Armstrong's evidence, which was given in the form of an affidavit adopting what he had told Ms Duffy whom he saw on 13 May 2014, some four weeks after he had given evidence in the sentence hearing before me that he made the assumption that if a partner was aware that he had the HIV virus he would disclose it as a matter of courtesy. I do not accept that he made any such assumption. I consider that evidence to be a recent invention. I do not accept Mr Nicholson's submission, which was not established by the evidence, that there was a convention in the gay community at the relevant time that if neither enquiry nor disclosure was made, the participants could assume that neither was HIV positive. The proposition advanced by Mr Nicholson that "the engagement is undertaken on the basis of what I might call a presumption of innocence that everything is okay" has not been made out. 111I regard this manslaughter as objectively very serious. It was a brutal and savage attack by a large, strong man against a relatively diminutive weaker man. I am not satisfied that Mr Flores was even able to inflict a laceration on the offender. At the time of the attack he was prone and his pants were down. The coroner did not observe any sign of injuries to Mr Flores that were of the nature of defence injuries. He was entirely at the offender's mercy. The degree of violence was very substantial. The coroner described the degree of force as "severe", such as might be applied in a motor vehicle accident. I do not accept the relatively benign description put forward by Mr Armstrong and his counsel that he only intended to injure his face and wind him. 112The only threat Mr Flores posed to Mr Armstrong was that he was HIV positive. Although infection by the virus could be fatal, it was a risk that Mr Armstrong was sufficiently cavalier to take, since he made no enquiry as to that matter before engaging in sex with Mr Flores. I do not regard the provocation as being particularly great in these circumstances. Mr Armstrong lost control immediately after Mr Flores' disclosure, a factor which might in other cases diminish the objective seriousness of the offence. However, he admitted to Ms Duffy that his "quick temper and 'anger issues'" were to blame for his assault on Mr Flores. The offender was also, at the time of the attack, disinhibited by both alcohol and amphetamines (speed). 113Mr Armstrong's conduct immediately after the assault was clear-headed, callous and selfish. But for his slip in confessing his crime to Ms Webber and the persistent investigation of Detective Hungerford he would have, quite literally, got away with what would have been murder but for the provocation on the basis of which his lesser plea to manslaughter was accepted. Historic crime 114I am obliged to take into account sentencing practice at the date of the commission of the offence if sentencing practice has moved adversely to Mr Armstrong in the interim: R v MJR [2002] NSWCCA 129; 54 NSWLR 368. The Crown submitted that there was no discernible change. It was contended on behalf of the offender that sentences for manslaughter are presently longer than they were in 1991 when Mr Flores was killed. The onus of establishing such an adverse movement rests on the offender. I have considered the document entitled "Sentenced Homicides in New South Wales: 1990-1993", which is published by the Judicial Commission, as well as the numerous cases to which Mr Nicholson referred me by handing up tables of such sentences and the circumstances in which they were imposed. 115There is a substantial difficulty in identifying any trend in circumstances where the offence of manslaughter covers such disparate conduct. In some cases it might be regarded as almost as serious as murder, whereas in others, it might be regarded as an unfortunate consequence of an ill-considered act. There is little utility in comparisons where one is not comparing like conduct. 116The Court of Criminal Appeal in Scott v R [2011] NSWCCA 221 considered whether there had been an adverse movement in sentencing practices with respect to manslaughter between May 2000, when the crime was committed and 2010 when Mr Scott was sentenced. I am indebted to James J's helpful analysis of the authorities and the statistics and respectfully adopt his Honour's conclusion (with which Bathurst CJ and Johnson J agreed) that comparative statistics do not establish that sentencing practices have moved adversely to offenders for more serious offences of manslaughter during that period. 117The period under consideration in the present case is longer, since the crime was committed in 1991 and it is now almost 23 years later. Nonetheless the maximum penalty of 25 years' imprisonment has remained the same throughout the period. It would be reasonable to assume that legislative provisions regarding murder would have some impact on manslaughter sentences because of the relationship between the offences and the common element in voluntary manslaughter of an intention to kill or cause grievous bodily harm (see the discussion in R v Hoerler [2004] NSWCCA 184 at [25]-[44] per Spigelman CJ, RS Hulme and Adams J generally agreeing). The significant legislative change in this area occurred in 1989. While the introduction of a standard non-parole period for murders committed after 1 February 2003 may have affected the length of murder sentences, I do not discern any consequential effect on the length of sentences for manslaughter. 118I am not persuaded that there has been any such adverse movement. Pre-sentence custody 119It is agreed that the offender's sentence should be backdated in order to take into account the period which he has already spent in custody. Since his arrest in December 2008 he has been convicted of two unrelated offences of sexual intercourse without consent. At the time Murrell DCJ sentenced him for those offences, Buddin J had already imposed a sentence for murder of 17 years commencing on 4 December 2008 and expiring on 3 December 2025 with a non-parole period of 11 years and 6 months expiring on 3 June 2020. When the offender's conviction for murder was quashed, his sentence for the sexual assault offences was varied by the Court of Criminal Appeal to commence on 4 December 2008: Armstrong v R [2013] NSWCCA 137. The varied non-parole period for the second offence expired on 20 October 2012 and the total sentence is due to expire on 20 October 2014. 120Mr Nicholson submitted that I should allow a degree of concurrence between that sentence and the sentence to be imposed, in part because the sentence imposed by Murrell DCJ commenced two years before the non-parole period of the sentence imposed by Buddin J for murder expired. The Crown contended that the sentence I impose on Mr Armstrong for manslaughter ought commence on 21 October 2012, immediately after the expiry of the non-parole period for the sexual offences and that the factors that influenced her Honour were no longer applicable. 121In all the circumstances I do not consider it to be appropriate to backdate the sentence for manslaughter to a date earlier than the expiry of the non-parole period for the sentence imposed for the sex offences. There is entirely separate criminality between the manslaughter and the sexual offences. Although the principle of totality sometimes makes it appropriate for there be some concurrence between sentences I do not consider the present to be such a case. I propose to commence the sentence for manslaughter on 21 October 2012, immediately following the expiry of the non-parole period for the sexual offences. Lack of remorse 122The offender has demonstrated a striking lack of remorse. The threat made to Ms Webber that he had already killed one man and could kill another demonstrates his lack of remorse. The timing of his plea, which will be addressed below in the context of its utilitarian value, is also evidence of this. He was charged with murder on 4 December 2008. On 24 December 2008 he had the conversation referred to above with Detective Hungerford. On 20 January 2009 Detective Hungerford had a telephone conversation with Ms Clark, the offender's Legal Aid solicitor, in which Detective Hungerford mentioned the admission the offender had made to him on 24 December 2008 and that Mr Flores was indeed HIV positive. He suggested to her that it may be that the crime was manslaughter, although that was a matter for the DPP. 123The conversation Mr Armstrong had with his father on 6 April 2009 provides a further indication that he well knew the effect of his denial of any involvement in the assault that led to Mr Flores' death and that a plea to manslaughter would be inconsistent with such denial, but if accepted would lead to a lower sentence. 124In submissions at the paper committal hearing Mr Armstrong's then counsel, Mr Haesler SC, contended that there was a "plausible alternative scenario", namely that Mr Lee had killed Mr Flores, and argued that the conversation on 24 December 2008 was inadmissible. 125Mr Armstrong was arraigned in this Court on 4 December 2009. When the Crown sought to tender the admission made to Detective Hungerford on 24 December 2008, Mr Armstrong's counsel objected and the admission was rejected. Justice Buddin, the trial judge, rejected the tender of the evidence. His Honour adverted in the voir dire to the forensic consequences of Mr Armstrong's instructions to object to that evidence and conduct the case on the basis that he had no involvement in Mr Flores' death. 126The way in which the trial was conducted showed, in my view, that far from being remorseful, the offender was prepared to blame others, including a named person, for acts for which he knew he was responsible. His counsel at trial said to the jury in his closing address, presumably on instructions: "I can't prove Mr Lee is the killer. As I said, there is evidence which doesn't fit, there is also evidence which does. So what we say is the testimony of Mr Lee raises for you the fact that there were people at the time prepared to prey on homosexual men, to carry out the sort of attacks we say were carried out on Mr Flores." 127In re-examination Mr Nicholson asked the offender how he felt about having conducted his case at trial on that basis. His answer was, in my view, self-centred and, in so far as it purported to express concern for Mr Flores' family, disingenuous: "Now, thinking back, it was the most stupidest thing I could have done. I should have just owned up from the bat and had all this closure, not only for myself, but for the Flores family and friends, which is why I have turned around and changed my plea to guilty on the manslaughter, to give them closure. Because if we just went the other way it just drags on for them as well which is putting them through something they don't need to be." 128On 20 May 2013 the Court of Criminal Appeal quashed Mr Armstrong's conviction for murder and ordered a retrial which was listed to commence on Monday 7 April 2014. On Friday 4 April 2014 a letter was received by the DPP from Legal Aid advising that Mr Armstrong would plead guilty to manslaughter on the basis of provocation. 129I am not satisfied that the offender feels any remorse for his crime. Subjective matters 130The offender was born in Tasmania in 1963. He was 28 when he killed Mr Flores. He has five siblings. He described his father as being relatively passive and his mother as being aggressive and dominant. 131When the offender was a child, he went to many different schools in Tasmania because of his parents' frequent moves. His parents separated and reconciled during this period. He was disruptive in class and subjected to corporal punishment, both at home and at school. 132His younger brother, Jamie, came out as homosexual in his teens. Jamie, who lives in Melbourne with his partner, was diagnosed as HIV positive in 1988. The offender married in 1983 shortly prior to the birth of his daughter Suzanne. He and his wife separated and reconciled as a result of which a son was born in 1985. His wife, from whom he is now divorced, has bi-polar disorder. The offender's daughter is in gaol and has experienced problems with drugs and alcohol. She has five children of her own, two of whom are being looked after by a former partner and the remaining three are in foster care with their aunt, the offender's sister. 133The offender was in custody between 2002 and 2004. During this period his mother died. 134Throughout his adult life, he has been in relatively constant employment, most frequently in the hospitality industry. He drank alcohol and took amphetamines. Prior to his arrest and extradition in December 2008 he managed several Domino pizza outlets in Tasmania. 135In 1995 he was diagnosed as HIV positive. He is on anti-retroviral medication. He has been assaulted in gaol as a result of which he has reduced vision in his left eye. He has lost contact with his family since being in gaol. 136In an assessment of his personality conducted by Ms Duffy, he was found to have avoidant, schizoid, masochistic (self-defeating), dependent and anti-social traits. He suffers substantial anxiety. He has to date been reluctant to seek counselling while in custody. Criminal history 137The offender's criminal history contains some convictions for offences of violence, both before and after his killing of Mr Flores. He is not entitled to leniency. Rehabilitation prospects and likelihood of re-offending 138The offender submitted that I should take into account as a mitigating factor that he has good prospects of rehabilitation and is unlikely to re-offend. I am not satisfied of this matter. His preparedness to resort to violence stems, as Ms Duffy said, from the violence to which he was subjected as a child. Justice demands that some allowance be made for the circumstance that the offender did not have any choice as to the environment in which he was raised. Although he will be older when he is eventually released from custody, I am not satisfied that he will either be wiser or more able to control his impulses or more able to express them in a non-violent way. Plea of guilty 139I am required to take into account Mr Armstrong's plea of guilty. The utilitarian value of the plea is low because of its timing. Although a four week trial has been avoided, the sequence of events set out above shows what has preceded it. Mr Armstrong has been aware since at least 24 December 2008 of the advantages of a plea to manslaughter when charged with murder. He has pleaded at what was, effectively, the last possible opportunity. Accordingly, in these circumstances, I consider that it is appropriate to allow a discount somewhat less than the guideline range. Although some discount should be allowed, I am not persuaded that it ought be more than 5%. Accordingly, there will be a discount of 5%. Special circumstances 140The requirement to set a non-parole period and to find special circumstances before departing from the statutory ratio are relevantly the same for offences committed in 1991 as they were following the enactment of the Crimes (Sentencing Procedure) Act 1999 (NSW): see s 5 of the Sentencing Act 1989 (NSW), although the expressions "minimum term" and "additional term" have been replaced in the later Act 141It was submitted on behalf of Mr Armstrong that I ought find special circumstances on the basis of Ms Duffy's opinion that the offender has become institutionalised by reason of his lengthy incarceration. It was also submitted that the question whether and when he ought be released was one more appropriately made by the Serious Offenders Review Council. I am not persuaded that the offender's institutionalisation constitutes special circumstances in the present case. Indeed one might consider that anyone who spends a lengthy time in custody would be likely to become institutionalised. 142Secondly, Mr Nicholson submitted that I ought take into account the whole of the time the offender has spent in custody since 4 December 2008 and adjust the statutory ratio for the total term and the non-parole period for manslaughter accordingly. The reasons for not backdating the commencement of the present sentence are also applicable here. In my view the sentence for manslaughter ought stand apart from, and not be affected by, the sentence imposed for the sex offences. 143I note that it is implicit in the variation by the Court of Criminal Appeal of the sentence for the sex offences that Buddin J was satisfied that there were special circumstances. It was not submitted that I was bound by that finding. Indeed, as I indicated to the parties, I have not considered Buddin J's remarks on sentence lest I be influenced by the factual substratum of the trial which was necessarily different from the Agreed Facts and evidence before me. I do not regard the sentence imposed by Buddin J, which was set aside when the conviction was quashed, as having any bearing on the exercise of my sentencing discretion. Loss of the deceased 144The deceased's sister, Ines Flores, described the effect on her of the deceased's death in a statement that was read out in Court, a copy of which was handed up. Her statements bears witness to the grief, pain and loss suffered by those who survive the deceased. 145Under the law, the loss suffered by the deceased and his loved ones cannot be reflected by any sentence I impose. However, before I impose a sentence, I wish to pause to acknowledge the loss of Felipe Flores to his family and to his friends and in particular to Ines. I take this opportunity to extend my personal sympathies to all those who loved him. 146Retribution is one of the many aspects of punishment and is particularly significant when a life has been taken. However, under laws that have been in existence for a long time now, the loss suffered by the deceased and his family cannot be replicated by any sentence I impose. I am conscious of the observations of Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76 at 87-88. It is the approach that I adopt. Sentence 147Paul Armstrong: (1)For the manslaughter of Felipe Flores , I sentence you to a term of imprisonment of 13 years and 3 months, commencing 21 October 2012, with a non-parole period of 9 years and 11 months. (2)The earliest date upon which you are eligible for release on parole is 20 September 2022. ********** 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: 30 May 2014