Supreme Court New South Wales Medium Neutral Citation: R v Silva [2015] NSWSC 148 Hearing dates: 6 February 2015 Decision date: 06 March 2015 Jurisdiction: Common Law Before: Hoeben CJ at CL Decision: Offender sentenced to imprisonment for 18 months to commence on 6 March 2015 and to expire 5 September 2016. Such sentence is to be wholly suspended. The sentence be suspended on condition that offender be of good behaviour until 5 September 2016 and that offender be liable to be called up for sentence at any time within that period for any breach of this condition. Catchwords: SENTENCE – manslaughter by excessive self-defence – offender and deceased in an abusive domestic relationship – threatening telephone calls made by deceased to offender on the day of the offence – physical assault by deceased on offender and members of her family – deceased stabbed during altercation with members of the offender's family – exceptional circumstances – appropriate case for a suspended sentence. Legislation Cited: Crimes Act 1900 – s 24 Crimes (Sentencing Procedure) Act 1999 - s, 3, s 21A, s 28(4) Cases Cited: Berrier v R [2009] NSWCCA 40 R v Bogunovich (1985) 16 A Crim R 456 R v Hill (1980) 3 A Crim R 397 R v Isaacs (1997) 41 NSWLR 374 R v Kennedy [2000] NSWSC 109 R v Melrose [2001] NSWSC 847 R v Roberts (Hunt J, 31 August 1989, unreported) Category: Sentence Parties: Regina – Crown Jessica Silva - Offender Representation: Counsel: Mr E Balodis - Crown Mr G Scragg - Offender Solicitors: Director of Public Prosecutions - Crown Moustafa Kheir - Offender File Number(s): 2012/153148 SENTENCE 1. HIS HONOUR: On 13 May 2012 James Polkinghorne (the deceased) died as the result of a stab wound received to his chest. It was common ground that the offender, Jessica Silva, stabbed the deceased. 2. The offender was arrested on 13 May 2012 and subsequently charged with the offence of murder. She was in custody until 5 December 2012 when she was released on bail. She has been at liberty on conditional bail until the present time. 3. On arraignment the offender pleaded not guilty to the offence of murder and her trial for that offence commenced before myself and a jury of twelve on 12 November 2014. On 4 December 2014 the jury returned a verdict of not guilty of murder but guilty of manslaughter. 4. There was no agreement between the parties as to the basis on which the jury arrived at their verdict of manslaughter. The Crown submitted that the Court should find that the offender stabbed the deceased with an intention to kill, or to inflict grievous bodily harm, but that this was ameliorated because she believed her act was necessary to defend herself or some other person. In the alternative, the Crown submitted that the offender had stabbed the deceased with an intention to kill or inflict grievous bodily harm but that this intention had been ameliorated by provocation. The offender submitted that the Court should find that she had no such intention and that she should be sentenced on the basis of having committed an unlawful and dangerous act. 5. This lack of agreement required the Court to analyse the facts, so far as they were known, and to determine on which basis the offender should be sentenced. Factual Background 1. I make the following findings based on the evidence at trial. With some qualifications, I have also had regard to the report, dated 3 February 2015, of Associate Professor Quadrio, a consultant psychiatrist, which was relied upon by the offender in the sentence proceedings. 2. At the time of his death, the deceased was aged 28, was 1.74m in height and weighed 85.5kgs. He was of Maori descent and well-muscled. The autopsy showed him to have sustained several stab wounds. One wound entered his body in the rear of the upper left shoulder region, with the underlying wound track passing from back to front and slightly downwards. It caused injury to the left lung and major blood vessels within the chest and brought about his death. There was a stab wound to the rear of the scalp with a wound track passing downwards to the skin over the rear of the neck without associated significant injury. There were three further stab wounds to the lower back, one of which possibly comprised two overlapping wounds, again without associated significant internal injuries. In addition to the stab wounds, there were multiple grazes and bruises over the face and widespread grazes over the front of the knees. 3. The post-mortem toxicology report showed no blood alcohol but .09mg/L of blood amphetamine and .21mg/L of blood methylamphetamine. There was other evidence that at the time of his death, the deceased was heavily intoxicated with methylamphetamine otherwise known as "ice". 4. At the time of the deceased's death, the offender was aged 22. She and the deceased had been in a relationship for approximately four years and had lived together for two years. The offender left the unit where she and the deceased had been living and moved back with her parents in Marrickville about two months before the offence. She and the deceased had a two year old child at that time. 5. The offender did not give evidence at trial. There was before the Court a lengthy ERISP of an interview between her and the police taken shortly after the offence. There were also recordings of telephone conversations between the offender and the deceased, the offender and the deceased's mother and the offender and her brother, Miguel Silva. There was evidence from other persons, including friends of the offender, as to their observations of the relationship between the offender and the deceased. 6. By way of interpolation it should be noted that the existence of the telephone intercepts was entirely fortuitous. Nikolas Argiropoulos, an associate of the deceased, was shot dead on 21 March 2012 in Birchgrove. Police suspected that the deceased had killed him in connection with their involvement in drug dealing. The offender's telephone conversations were being recorded so that police could find out the mobile telephone number of the deceased so that his telephone conversations could be recorded as part of the investigation of him for the killing of Argiropoulos. The fact that the telephone conversations were being recorded was unknown to the offender at the time. 7. The report of Professor Quadrio set out what she had been told by the offender in an interview on 13 January 2015. There were matters in that history which were different to the evidence at trial. Where there is a conflict between the history recorded by Professor Quadrio and the evidence at trial, I prefer the evidence at trial. For example, I do not accept that the offender saw the deceased with a gun every day, nor do I accept that he put a gun to her head at any time (report p14.9). Such assertions are inconsistent with what the offender said to the police in her ERISP. 8. There was evidence at trial from the offender's father (Avalino) and her brother (Miguel) who with the offender were directly involved in the events which led to the deceased's death. There was also evidence from other persons who witnessed some of the events of that night. 9. The relationship between the offender and the deceased was an abusive one. From an early point in the relationship, the deceased sought to control the actions of the offender in a number of respects. While the incidents of physical abuse in the early years of the relationship appear to be sporadic, there was a significant escalation, particularly in physical abuse, towards the end of 2011 and during 2012. 10. The deceased's father and step-sister gave evidence of an occasion in early 2012 when the offender and her son travelled to the deceased's father's home in Queensland in order to get away from the deceased. The deceased followed her there. Despite warnings from his father, the deceased violently assaulted the offender and was told to leave the house by his father. It was common ground that during 2012 the deceased was engaged in drug supply (probably ice) and was also using that pernicious substance. His use of ice greatly increased in the weeks leading up to his death. 11. There was evidence from a number of sources of complaints by the offender concerning assaults by the deceased on her, particularly during 2012. The deceased admitted to Miguel that he had assaulted the offender on two or three occasions. In her ERISP the offender described the relationship with the deceased as "very abusive" and said: "I dealt with it for so long, I thought I could change him" (ERISP A.188). I accept that evidence. 12. The deceased was unemployed during 2012. The offender told police that in the weeks before his death he was using "ice" "really bad" (ERISP A.55). On the night before his death, he was showing signs of paranoia and was delusional. He believed that there were listening devices hidden in the walls of his hotel room as a result of which he changed rooms. He was observed by Miguel to smoke ice on a number of occasions in the months before his death. 13. His delusional state of mind at this time was confirmed by the witness Kay Liyanage who on the evening of 11/12 May 2012, observed that his hotel room was barricaded, the lights were off and that he would not talk to her because he feared that what he said was being recorded. If he wanted to communicate with her, he would do so by way of written messages on a mobile phone. He told her that he was being watched through the mirrors in the room. 14. The offender, the deceased's father and Miguel said that when intoxicated by "ice" the deceased became paranoid and aggressive. As indicated, at the time of his death the deceased was found to have high levels of methylamphetamine in his blood. 15. On Saturday, 12 May 2012 the deceased and the offender, along with their young child, spent the night at the Meriton Apartments on Campbell Street, Sydney. The offender said that she went there because otherwise the deceased would "cause dramas". While she was there, the deceased told her that he wanted her back and that he was sorry for everything he had done to her. She told him that she could not be with him (ERISP A.33-34). It was on this occasion that the offender made the observations as to the deceased's behaviour and drug taking already referred to. The offender's reason for visiting the deceased on that night is supported by a series of threatening SMS communications which she received from him on 11 May 2012. 16. At about 10.30am on 13 May 2012 the offender and her son left the apartment. The deceased was not pleased that the offender was leaving but allowed her to go because it was Mother's Day and because she had promised to return after visiting her parents. The deceased told the offender that he wanted her to return to the hotel otherwise he would be at her house. The offender went to the family home in Livingstone Road, Marrickville. 17. There followed a number of phone calls and text messages between the offender and the deceased on 13 May 2012. The deceased was clearly upset about the breakup of their relationship and believed that the offender would not be returning to the hotel because she had packed all her clothing and that of the child. The content of the messages and telephone conversations, together with the tone of voice used by the deceased, were increasingly abusive and threatening. The deceased wanted the offender to return to where he was staying and sought to overcome her resistance to doing that. The telephone conversations make it clear that the deceased was under the influence of "ice" at the time. 18. The content of the telephone calls became increasingly threatening and abusive with the passage of time on 13 May. The following extracts are by no means comprehensive but give the flavour of what the deceased was saying: "5.25pm "… I swear I'm gonna cave your f***ing head in … I'm just gonna bash the f*** out of you and I don't give a f*** who's standing next to ya. I'll bash them too." 5.36pm "… It's not a threat if I turn up … it's action …" 6.20pm "… you're more putrid … maggot … biggest piece of shit … I'm in a taxi and f*** 20 minutes … I'm breaking it [mother's mouth] trust me … and that is a threat … I'm still gonna break your f***ing jaw, 'cos you're a dog …" 6.29pm "I'm coming to get you …" 6.34pm "Well you better f***ing seriously come here otherwise … f***ing mutt … and I'll come there and I'll cave your f***ing face in … 'cos I'm stronger than all of youse f***ing put together … I'm coming there to break something …" 6.56pm "… I'll guarantee I'll bash as many people as I can before they arrest me. Guarantee …" 8.55pm "You're a piece of shit … nothing to say before I kick your f***ing door down …" 8.59pm "Too late for that isn't it you piece of shit … well accept responsibility because you are the cause of everything …" 9.03pm "Come on you f***ing weak c*** … I'll come there whether you f***ing like it or not and I'll f***ing kick your front window in and everything …" 9.04pm "[Breathing heavily] I'm not going to f***ing stand out on the street … I'm not going to stand out on the street … putrid piece of shit … you got f***ing literally 30 seconds to walk out of that door otherwise I'll be hitting f***ing level hundred 100, straight off the bat … you want to test me … you really want to test me … I'm here, I'm not a f***ing … see mate! You … dog …" 1. The offender spoke to the deceased's mother about these calls at 7.04pm. She said "James is, is freaking being an idiot again … so he's coming around to kill me now so I'm just waiting for it". The offender went on to explain that the deceased was harassing her to stay with him at the hotel and that she was going to call the police. 2. There were a number of calls between the offender and her brother, Miguel, during which she asked him to come to her parents' house. In the first at 7.21pm she said: "James is f***ing psycho … again, and he reckons he's gonna come and kill me right now … (crying). I wanna f***ing tell them [the police] everything but I f***ing can't. Why do you think I don't tell them so he can bash me up all the f***ing time. I'm sick of it. Seriously I'm f***ing sick of it and I don't know what to f***ing do any more." 1. In a later call at 7.23pm the offender explained to Miguel why she did not want the police called. She said that they could do little. Miguel repeatedly told her to call the police. At this point the offender asked Miguel Silva whether there was anyone that "we can contact, someone to f***ing get him killed or something. I've f***ing had enough". Later in the same call, she asked if someone could "fix up" the deceased, meaning to bash him. 2. I accept that at this time the offender was very upset and was afraid of what the deceased might do if and when he arrived at the family home. I am not satisfied that the offender believed that the deceased was likely to kill her, but she certainly expected that he would be violent and abusive towards her and would react violently if any members of her family tried to prevent him. While I accept that the offender was aware that the deceased had access to a pistol, I am not satisfied that she believed that he was likely to bring the pistol with him to her home. 3. At about 8.30pm the deceased went to Marrickville by taxi. He appears to have alighted from the taxi, some distance from the offender's home in Livingstone Road, and then walked to the house. The telephone call at 9.04pm appears to have been made when the deceased was standing opposite the offender's home. 4. The evidence as to what happened thereafter came from Miguel, the offender's father Avalino, from the offender in her ERISP and from the history recorded by Professor Quadrio. Not surprisingly, that evidence is confused and confusing and it is difficult to know the precise sequence of events. 5. Mindful of those difficulties, I find the sequence of events was generally as follows. After the telephone call at 9.04pm, the offender and Miguel emerged from the family home to speak to the deceased. He ran across the road towards the offender shouting "I'm going to f***ing kill her, I'm going to f***ing kill her". Miguel was trying to get the deceased to calm down and was saying something to the effect "Just calm down James, calm down we'll talk about it. Come on James, we're all family here." The deceased grabbed the offender and punched her at least once in the face and ripped her pants. The offender tried to move backwards and away from the deceased. 6. Miguel then intervened and tried to pull the deceased away from the offender which led to the deceased punching him. He and the deceased struggled together, causing them to fall onto the road in such a way that the deceased was on top of Miguel and was either punching him or attempting to head-butt him. 7. At some point the offender shouted or screamed that the deceased was "trying to kill Miguel". This led to Avalino leaving the house and becoming involved in the struggle with the deceased. Avalino was trying to pull the deceased off Miguel without much success. 8. I am not satisfied that the deceased said at any time "I've got a gun, get here, I'm going to kill you". Nothing to that effect was said by either Avalino or Miguel in their evidence. The fact that the offender had been punched at least once by the deceased before the intervention of Miguel was confirmed by photographs taken after her arrest which showed a bruised area above her mouth and that the crotch of her tracksuit pants was ripped. 9. While the struggle between Avalino, Miguel and the deceased was taking place on the road, the offender ran back inside the house and obtained a knife from the kitchen. She then went back to where the struggle was taking place on the road. The offender's recollection was that she stabbed the deceased once "maybe twice I think". She could not remember where she stabbed the deceased. When the offender went to stab the deceased, Avalino tried to grab the knife and as a result, suffered an injury to his hand. Neither Miguel nor Avalino actually saw the offender stab the deceased. 10. I am satisfied that the offender stabbed the deceased when he was on top of Miguel while they were struggling on the road and while Avalino was attempting to pull the deceased off Miguel. The offender stabbed the deceased at least five times in the shoulder, the back of his head and his back. When this occurred, Miguel and Avalino were able to restrain the deceased who had succumbed to the effects of the stab wounds to the shoulder. 11. When asked by police why she stabbed the deceased, the offender said "I wasn't trying to kill him, I was just, I don't know what I was trying, I just, I just didn't want him to hurt me anymore" (ERISP A.294). An eyewitness observed the offender standing on the kerb holding the knife and screaming. She appeared to be hysterical. 12. I am not prepared to find that when the offender stabbed the deceased she intended to kill him. I am satisfied beyond reasonable doubt that she had the intention of inflicting grievous bodily harm when she stabbed him. The position of the fatal stab wound, its depth and the fact that at least five stab wounds were inflicted support that conclusion. I am also satisfied that the offender's motivation was to protect her brother and father from the deceased and to protect herself from being further violently assaulted. 13. Accordingly, I find that the offender stabbed the deceased with an intention to inflict grievous bodily harm because she believed her act was necessary to defend not only herself but her brother and father. However, in accordance with the jury's verdict, the offender's conduct was not a reasonable response in the circumstances as she perceived them, thereby rendering her guilty of the crime of manslaughter by way of excessive self-defence. 14. In her report, Professor Quadrio concluded that during her relationship with the deceased, the offender developed chronic and complex Post Traumatic Stress Disorder (PTSD) with particular features which are described as the "Battered Woman Syndrome". Professor Quadio concluded that the offender continues to suffer from PTSD in that she continues to experience an intrusive preoccupation with the trauma, hyperarousal, hypervigilence, flashbacks, heightened reaction to cues and feelings that she could have done more to help the deceased. 15. In the absence of any psychiatric opinion to the contrary, I would normally accept such a diagnosis. In this case I am not prepared to do so. This is because the diagnosis is based upon significant pieces of history from the offender which are different to the evidence at trial and to what the offender said in her ERISP. I am prepared to accept that the offender currently suffers from PTSD. The events of the night of 13 May 2012 would of themselves be sufficient to bring about such a condition and there is no reason to doubt the existence of the symptoms which the offender described following the deceased's death. What I am not prepared to accept is that the Post Traumatic Stress Disorder was due to the offender's relationship with the deceased and was in existence before the deceased's death. 16. That having been said, I do accept that when the offender stabbed the deceased she was in a highly emotional and hysterical state. This is confirmed by the evidence of her father and brother and by independent witnesses who observed the offender shortly after the incident occurred. It is also consistent with what the offender had experienced and been subjected to in the hours before the deceased's death. 17. The content and threatening nature of the telephone calls received from the deceased were intended to, and did, greatly upset the offender. This is apparent when one hears her side of the telephone conversations. She was clearly very upset when she spoke to the deceased's mother and to Miguel on the night of 13 May. That she would have been highly emotional and upset at the time of the incident is consistent with her becoming increasingly fearful as the deceased approached her family's home. 18. The circumstances in which she came to stab the deceased also support such a conclusion. She had been punched in the face at least once by the deceased, who had only been prevented from causing further harm to her by the intervention of her brother and then subsequently her father. A conclusion that she was in a highly emotional state and was not thinking clearly at the time she stabbed the deceased is a reasonable inference from those events and I so find. 19. I have concluded that the circumstances surrounding this offence were most unusual and exceptional. 20. Three Victim Impact Statements were read in the sentence proceedings. These statements came from the deceased's mother, his brother and step-sister. The statements express the family's love of the deceased and their grief and sorrow at his death. The Court was not asked by the Crown to take these Victim Impact Statements into account. Accordingly, pursuant to s 28(4) of the Crimes (Sentencing Procedure) Act 1999 the Court cannot have regard to the Victim Impact Statements in the sentencing process. Neverthless, the Court expresses its profound sympathy to the family members of James Polkinghorne who have been and who are suffering by reason of his death. Subjective matters 1. Although the offender has not given evidence, either at trial or in the sentence proceedings, the content of her ERISP and her demeanour in court leaves me in no doubt that she has experienced genuine contrition and remorse for the death of the deceased. 2. The offender was raised in a stable family that holds strong family values and she continues to receive their solid support. Her developmental years were stable and she progressed well psycho-socially. There are no aspects of her development that suggest a propensity for offending or anti-social or violent behaviour of any kind. 3. There is a substantial body of evidence before the Court to the effect that the offender is a good mother and is primarily concerned for the welfare of her child. It is apparent that the offender does not prioritise her own needs over those of her child and this speaks strongly against the kind of personality that is most often associated with offending behaviour. Given the particular circumstances of this offending, I find that there is no risk that the offender will offend in this way in the future. This act of violence was the outcome of her disturbed state of mind at the time and the particular events of the day, culminating in the arrival of the deceased at her home and the subsequent struggle between the deceased and members of her family. This conclusion is supported by the assessment of Professor Quadrio who said "Her pre-morbid adjustment was very sound and she has an excellent support system and is strongly motivated to rehabilitate her life and to care for her child". Sentencing principles 1. I must proceed to sentence the offender against the background of the relevant statutory framework and in accordance with the principles enunciated in the relevant authorities. Section 3A of the Crimes (Sentencing Procedure) Act 1999 provides: "3A The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community." 1. It is also necessary in determining the appropriate sentence to have regard to the aggravating and mitigating factors which are set out in s 21A of that Act. It is apparent from the concluding words of s 21A(1) that the list is not exhaustive. It is not necessary to refer to all of the factors therein set out, but only to those which are relevant. 2. Of the aggravating factors, the only one which is relevant is that the offence involved the actual use of a weapon. 3. So far as mitigating factors are concerned, the offence was not part of a planned or organised criminal activity but occurred in the agony of the moment. There was some element of provocation. The offender has no criminal record. The offender is a person of good character. She is unlikely to re-offend and has good prospects of rehabilitation. She has shown remorse and contrition for her offending. Finally, by way of mitigation, there was a strong element of self-defence in her offending. 4. It is also necessary to have regard to the maximum penalty which is prescribed by the legislature. For the offence of manslaughter, it is imprisonment for 25 years (s 24 Crimes Act 1900). I also take into account s 5(1) of the Crimes (Sentencing Procedure) Act 1999 which provides: "5(1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate." 1. Insofar as the authorities are concerned "It is now well established that when a human life is taken even within the context of domestic violence the courts will not deal leniently with the offender unless the case is exceptional. It is only in the most exceptional case that a non-custodial sentence will be imposed" (R v Bogunovich (1985) 16 A Crim R 456); R v Roberts (Hunt J, 31 August 1989, unreported); R v Kennedy [2000] NSWSC 109 at [56], R v Melrose [2001] NSWSC 847 at [27]). 2. As was said by Street CJ in R v Hill (1980) 3 A Crim R 397: "It has been said that manslaughter, perhaps, beyond any other crime is protean. The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act, 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party. In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life." 1. In Berrier v R [2009] NSWCCA 40 at [23] – [25] Rothman J (Giles JA and Price J agreeing) said: "23 Manslaughter involves the felonious taking of human life (R v Edwards (1996) 90 A Crim R 510) and, in the circumstances of this case, on the findings of his Honour, involved an intention to cause grievous bodily harm ameliorated by the existence of provocation. A sentencing judge must be careful not to double count the ameliorating effect of the existence of provocation. 24 Moreover, manslaughter, more than most, is an offence for which there is an extremely wide range of culpability and a correspondingly extremely wide range of appropriate sentences: Salah v R [2009] NSWCCA 2 at [37]; R v Warren Alan Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1, per Spigelman CJ at [133]-[135]; R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397; R v Blacklidge (Court of Criminal Appeal, Gleeson CJ, 12 December 1995, unreported). In Blacklidge, Gleeson CJ said: "It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied in such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability." (Blacklidge, per Gleeson CJ at p 3.) 25 Further, it is trite to remark that each case of manslaughter must depend upon its own circumstances, the range of sentencing being notoriously wide and unable to be categorised, as a matter of general description, into self-defence, provocation and/or unlawful and dangerous act. One can well imagine an offence in any one of such categories being better or worse than examples in the other categories." 1. Finally, in R v Isaacs (1997) 41 NSWLR 374 at 381 the Court of Criminal Appeal (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ) said: "The argument for the appellant advanced on this appeal appeared to assume that a case of provocation manslaughter is necessarily or at least ordinarily worse than a case of manslaughter by an unlawful and dangerous act. We do not accept that. Each case depends upon its own circumstances. The range of sentencing available in the case of manslaughter is notoriously wide. There have been cases where provocation manslaughter has resulted in non-custodial sentences." 1. By reference to general sentencing principles it is apparent that considerations of specific deterrence are not relevant. That necessarily follows from the findings as to rehabilitation and the unlikelihood of any re-offending. 2. The principle of general deterrence while still important, should be given less weight because of the exceptional circumstances of this case. The factual circumstances are most unusual with the steady build up of fear on the part of the offender arising from the escalating threats of violence emanating from the deceased as he approached the offender's home. Account also needs to be taken of the offender's state of mind at the time of the offending, she having been already brutally assaulted and witnessing the struggle between the deceased on the one hand and her brother and father on the other. I am satisfied that these circumstances are not such as to require that substantial effect should be given to general deterrence. 3. These circumstances and the factual background are also relevant to an assessment of the offender's moral culpability and the objective seriousness of the offending. Despite the offence involving the felonious taking of a human life, and the repugnance with which society views such an occurrence, there are in this case exceptional circumstances which significantly ameliorate the seriousness of what occurred. Given the broad and protean nature of the offence of manslaughter, I assess the objective seriousness as being towards the lower end of the range. The offending was committed under extreme circumstances in the agony of the moment. 4. Having regard to the matters to which I have referred, I am satisfied that the circumstances are exceptional. They involve culpability at the lower end of the range. There are, as I have indicated, a number of mitigating circumstances. There is also the fact that the offender has already spent over 29 weeks in custody and thereafter was subject to bail conditions which included a reporting regime. 5. Against those considerations, the Court still has to have regard to the sanctity of human life and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, in particular the need to denounce the conduct of the offender and make the offender accountable for her actions and ensuring adequate punishment for the offence. 6. Taking all those matters into account, I am satisfied that no alternative is appropriate other than a sentence of imprisonment. I do not think in the circumstances of this case that a good behaviour bond would adequately meet the purposes of sentencing set out in s 3A of the Act. In my opinion a sentence of 18 months is appropriate. However, having regard to the mitigating factors to which I have referred and the exceptional circumstances of this case, I have determined that the sentence of imprisonment should be fully suspended. I have chosen a term of 18 months in order to take into account the 29 weeks and 4 days during which the offender was in custody following the offence. 7. Jessica Silva in accordance with s 12 of the Crimes (Sentencing Procedure) Act 1999 you are sentenced to imprisonment for 18 months to commence on 6 March 2015 and to expire 5 September 2016. Such sentence is to be wholly suspended. I suspend this sentence on condition that you be of good behaviour until 5 September 2016 and that you be liable to be called up for sentence at any time within that period for any breach of this condition. ********* Amendments 16 March 2015 - A suspended sentence cannot be backdated. Sentence adjusted according to section 43 Crimes (Sentencing Procedure) Act 1999. 09 June 2015 - Typographical error in para [3] - Line 3 - date of 14 December 2014 amended to 4 December 2014. 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: 09 June 2015