Supreme Court New South Wales Medium Neutral Citation: R v Gilson (No 3) [2017] NSWSC 1670 Hearing dates: 29 November 2017 Decision date: 01 December 2017 Jurisdiction: Common Law - Criminal Before: Button J Decision: Convicted of manslaughter. Head sentence of imprisonment for eight years, with a non-parole period of five years, to date from 21 November 2014. Catchwords: SENTENCE – manslaughter – offender found not guilty of murder but guilty of manslaughter after trial by jury – need for findings of fact to be consistent with the verdict of jury – manslaughter by excessive self-defence – intention to inflict grievous bodily harm at the time of fatal act – pre-existing intention to harm the deceased – otherwise unblemished character of offender – psychological problems arising from child sexual assault – instinctive synthesis of countervailing factors – sentence imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(i) Cases Cited: R v Ellis (1986) 6 NSWLR 603 R v Johnson (No 5) [2017] NSWSC 1169 R v Manevski (No 2) [2016] NSWSC 1465 R v Previtera (1997) 94 A Crim R 76 Regina v Oinonen [1999] NSWCCA 310 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 Category: Sentence Parties: Regina Trudy Jane Gilson (Accused) Representation: Counsel: R Herps (Crown) P McGrath SC (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid (Accused) File Number(s): 2014/00344391 Publication restriction: Nil Remarks on sentence Introduction 1. On Tuesday, 27 June 2017, Trudy Jane Gilson (also known as Sheiles, and to whom I shall usually refer in these remarks as the offender) was arraigned in the Supreme Court sitting at Port Macquarie before a jury panel and me. The indictment contained two counts. The first alleged that, on or about 21 November 2014 at Wauchope, she murdered Raymond Andrew Lynch (to whom I shall usually refer as the deceased). The second, alternative count alleged that, on or about the same date and at the same location, she committed the offence of manslaughter against the deceased. 2. Thereafter a trial by jury commenced immediately. On Tuesday 25 July 2017, after having been permitted by me to return a majority verdict, the jury brought the trial to its conclusion by returning a verdict of not guilty of murder, but guilty of manslaughter. 3. The proceedings on sentence were stood over until Wednesday, 29 November 2017 at Newcastle; that lengthy delay was occasioned by my own unavailability. I had the benefit of extensive written and oral submissions from each party on that occasion. And it now falls for me to sentence the offender today. Fundamentals of approach 1. I have approached my task in accordance with the following fundamental principles. 2. First, it is not my role to seek to determine what facts the jury found; that would be impossible in any event. Rather, it is my role to find the objective and subjective facts, but I must always do so consistently with the verdict of the jury. 3. Secondly, facts adverse to the offender must be proven beyond reasonable doubt. Facts in her favour need only be proven on the balance of probabilities. Some facts may not be able to be determined by me to either standard. I interpolate that the latter category looms large in this particular case. 4. Thirdly, any concession about a matter of fact that was made by the Crown at trial or on sentence should be accepted and acted upon by me, whatever would have been my own assessment. 5. Fourthly, as part of giving full weight to the verdict of the jury, it is important for me to keep firmly in mind the principle that a person cannot be punished for a more aggravated version of the offence of which they have been found guilty: The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31. In other words, in sentencing the offender for manslaughter, she must be given the full benefit of the verdict of not guilty of murder. 6. Fifthly, some time ago I sentenced Mr Ryan Smith, who was the romantic partner of the offender at the time of the offence, for his own offence of hindering an investigation. I have put from my mind all of the evidence that was placed before me in those proceedings on sentence, and all of the findings of fact that I made as a result, as a matter of procedural fairness to this offender. 7. Sixthly and finally, the maximum penalty for the offence of manslaughter is imprisonment for 25 years. There is no greater penalty for an offence against the laws of New South Wales except life without possibility of parole. No doubt because manslaughter is a notoriously varied offence, both legally and factually, Parliament has not set a standard non-parole period with regard to it. I regard the maximum penalty of the offence as an important guidepost in my exercise of the sentencing discretion. Objective features 1. Having set out the fundamental principles that I have applied, I now turn to analyse the offence, and the circumstances in which it occurred. My task is complicated by the fact that I am satisfied beyond reasonable doubt that the offender has been deliberately untruthful with many people with regard to this matter: civilians (including at least one family member of the deceased); the police; and, highly regrettably, to the jury and me whilst giving evidence on oath. 2. To recount the background in generally chronological form, the offender and Mr Smith met in 2012. They moved in together in 2013. 3. As at November 2014, Mr Smith was living in simple rural premises at Pappinbarra, some distance out of the town of Wauchope in the Mid North Coast region of New South Wales. The offender was in the process of moving out of premises at Moorland, to the south of Port Macquarie. Mr Smith also had available to him a bedroom in a unit in the latter town. Their relationship had had its ups and downs, but was reasonably stable at the time. 4. On Monday, 17 November 2014, the offender and Mr Michael Dunn met by chance in Port Macquarie. Mr Dunn, regrettably, was and is a person who has obviously been damaged by abuse of prescription or prohibited drugs. At the time, he was also in poor physical health. Contrary to the evidence of the offender, I am not satisfied on the balance of probabilities that her subsequent repeated engagement with him was some kind of act of charity. On the evidence placed before me, I am unable to determine why it was that, having met Mr Dunn on the Monday, she thereafter purported to have such concern for him in the following days. 5. On Wednesday 19 November 2014, the offender and Mr Smith attended at Port Macquarie Courthouse. They were fearful about the distinct possibility that Mr Smith would be incarcerated for a criminal offence that he had committed. When that did not eventuate, they purchased some alcohol with which to celebrate. In the process of doing so, they ran into Mr Dunn. He informed them that he wished to visit an old friend, the deceased, who lived in Wauchope with his wife and daughter, who was then about 15 years of age. The offender and Mr Smith offered Mr Dunn a lift there, and the three of them travelled to that home along with a celebratory case of beer. 6. The wife of the deceased, Ms Rebecca Kelly, was and is gravely ill, despite her relative youth. In fact, in November 2014 the expectation was that she would not survive into the New Year. As things stand today, I understand that she is still alive, but her death continues to be something that is regarded as imminent. 7. As one might expect, the grave illness of Ms Kelly had placed severe pressure on the family household. In particular, the deceased had become angry and threatening towards his wife and daughter, had spoken of the possibility of killing himself and the two of them, and had been an inpatient for a short time in a psychiatric hospital. 8. At the time of the arrival of the offender, Mr Smith, and Mr Dunn at the home of the deceased, Ms Kelly was at a hospital in Port Macquarie receiving treatment. Their daughter was present, but she left soon after the arrival of the three guests. A social event began between the four adults. Mr Dunn passed out shortly after arrival, seemingly as a result of the abuse of a prescription drug. Mr Smith did the same shortly thereafter, though whether as a result of abusing alcohol or something else is not clear to me. That left the deceased and the offender as the only two conscious persons in the home. 9. In accordance with the Crown case at trial, I accept that, whilst the two of them were there in a sense alone, the deceased sexually assaulted the offender. That featured a degree of physical violence above and beyond the violence inherent in any sexual assault. 10. Eventually, the offender was able to bring the sexual assault to an end. Later, the deceased informed her of the need for him to pick up his wife from Port Macquarie at the conclusion of her medical treatment. Due to his drunkenness, the offender agreed to drive. Again, I accept the proposition of the Crown at trial that, during the drive from Wauchope to Port Macquarie, the deceased tried to sexually assault the offender again, but she was able to fight him off. 11. Thereafter the deceased and the offender picked up Ms Kelly from hospital in Port Macquarie. I accept that, as a result of her appearance, the offender experienced a wave of sympathy for her – I say that because, having seen the appearance of Ms Kelly myself on a number of video-recorded statements and depositions that were played in the trial, I consider that almost any human being would have that reaction to the ravages of her illness. 12. The three of them returned to the home at Wauchope. Mr Dunn and Mr Smith remained unconscious. Ms Kelly and the offender spoke for some time in a bedroom, and I accept that they got to know each other. The offender said nothing of what the deceased had done to her earlier in the evening. 13. Eventually, Mr Smith was roused, and he and the offender left in the early hours of the Thursday morning. 14. On the Thursday, the offender and Mr Smith attended to a number of chores in and around Port Macquarie. They had contact with Mr Dunn again, including the accused taking Mr Dunn to a hospital for treatment for his suppurating leg. Although I accept that the two of them had a conversation about the deceased and his family at the hospital, I make no finding as to the detail of it. That is because of my concerns about the credibility of the offender, and the fact that the versions of that conversation given by Mr Dunn at various stages were garbled and inconsistent. 15. In the evening, the offender and Mr Smith returned to the premises at Pappinbarra. The position of the offender is that, due to a certain sourness between herself and Mr Smith, and the absence of an internet connection at the premises, she commenced to drive around aimlessly, whilst drinking from a bottle of vodka and consuming sedatives that had been prescribed to her. But I am not satisfied of the precise whereabouts of the offender on the Thursday evening and in the early hours of the Friday morning, and the question is unable to be determined by me. Furthermore, I do accept on the balance of probabilities that the offender had consumed some alcohol and some prescription medication, each of which exacerbated the effect of the other. But I do not accept that she was particularly intoxicated: I say that because of her ability to drive; her ability to manipulate social media and send complex messages about diverse topics; and the fact that, later in the morning, after the fatal act had been committed, she was able to attempt to cover her tracks, by way of acts and words, with focused cunning. 16. At 2:24 AM, the offender sent a Facebook message to an old friend from school. It was dissected at length in the trial and the proceedings on sentence, and is to be found at Exhibits K and L. In those circumstances, it does not need to be extracted in these remarks. Suffice to say I firmly reject beyond reasonable doubt the innocent explanation given for it by the offender. Read as a whole, and with ordinary human experience and common sense, it cannot be interpreted as anything other than a statement of an intention on the part of the offender to do physical harm to the deceased, as a result of what he had done to her on the Wednesday evening. 17. Having said that, despite subsequent events, and contrary to the submission of the Crown on sentence, I do not believe that I can be satisfied beyond reasonable doubt that the intention of the offender at that stage went beyond the infliction of actual bodily harm. Apart from anything else, I consider that to do so could run the risk of contravening the verdict of the jury, for reasons that I shall explain shortly. 18. Thereafter, at about 4:30 AM, the offender telephoned the mobile number of Ms Kelly, with which she had been provided on the Wednesday evening. I reject without difficulty the claim of the offender that, at that very early hour, she experienced a sudden panicked concern for the welfare of that gravely ill woman, whom she had met once 36 hours beforehand. The real reason why the offender rang the telephone number of Ms Kelly at about 4.30 AM on the Friday is unable to be determined by me. 19. In fact, when she called that number a second time, the offender spoke to the deceased. Despite the fact that I have never seen her give evidence in person, I accept the evidence of Ms Kelly about what she heard of that conversation, and indeed her evidence about all preceding and subsequent conversations that Ms Kelly had with the offender. I say that because, despite her undoubtedly grave illness, her version of events was first given very soon after they occurred; her versions were unwavering; they were clear; they made sense; and Ms Kelly had no motive to lie. 20. For some reason that I cannot determine, the deceased and the offender agreed to meet at that early hour. The offender did not drive to the home of the deceased, but rather their two vehicles met a short distance from there. Thereafter they travelled to a reasonably remote semi-rural cul-de-sac on the outskirts of Wauchope. 21. Again, I reject without difficulty the evidence of the offender that all of that was undertaken, at that time and place, so that she could provide some sort of unspecified assistance to the gravely ill woman whom she had met for the first time 36 hours beforehand. Nor am I satisfied on the balance of probabilities that the offender placed herself at risk with the man who had sexually assaulted her so recently because she was moved by some sort of overwhelming sympathy for Ms Kelly. 22. Having said that, despite the undoubted significance of the Facebook message, I am not satisfied beyond reasonable doubt that that meeting was some sort of ruse whereby the offender could inveigle the deceased to an isolated spot so that she could do him physical harm. In short, the truth about why the two of them met at that most unusual time and place is unable to be determined by me, either for or against the offender. 23. Nor am I able to determine with clarity what happened at the cul-de-sac. The two of them were there for very approximately two hours. I do not accept the evidence of the offender that she passed out for some indeterminate period. Nor do I accept that she came to consciousness to find that she was being sexually assaulted, nor that she was the victim of a further sexual assault by the deceased of anything like the severity that she claims. But for reasons that I shall explain shortly, and giving full weight to the verdict, I proceed on the basis that the deceased committed some kind of further sexual assault against the offender, to which she responded by stabbing him in the chest with a large knife. 24. As for the presence of that knife in the motor vehicle of the offender at the cul-de-sac, whilst on the one hand I do not accept on the balance of probabilities her evidence that it had been left in that vehicle as a result of moving premises, nor am I satisfied beyond reasonable doubt that she brought it with her to the assignation with the intention of stabbing the deceased. Apart from anything else, I think that such a finding could come close to traversing the verdict. Yet again, I am unable to determine how and why the knife came to be there. 25. The single fatal wound was to the right side of the chest of the deceased slightly below the nipple. It entered his body to a depth of over 20 cm, and was of sufficient force to damage rib cartilage. 26. In light of those indisputable medical facts, I am satisfied beyond reasonable doubt that, at the time of the stabbing, the offender intended to inflict grievous bodily harm upon the deceased. I do not go further and find an intention to kill proven to the criminal standard. 27. That finding of fact of mine, as to the lesser necessary intention for murder having been established beyond reasonable doubt, means that the only factual pathway, consistent with the verdict of not guilty of murder but guilty of manslaughter, is that the offender believed that it was necessary to do what she did in self-defence, but her act was unreasonable in the circumstances as she perceived them. It is for those reasons that I believe that it is inevitably incumbent upon me to find that some precipitating act of the deceased at the cul-de-sac led the offender to do what she did. And in light of the sexual assault of the Wednesday evening, I proceed on the basis that the precipitating act on the Friday morning was a further sexual assault committed by the deceased against the offender. 28. Having said that, much of the rest of what the offender has said about the circumstances of the stabbing and its aftermath must be rejected. In particular, I reject the proposition that she did not believe that she had seriously harmed the deceased, bearing in mind the location of the wound, its depth, and the force required to inflict it. 29. Furthermore, even allowing for the evidence of the forensic pathologist, and the fact that the deceased was able to drive his motor vehicle for a short period after having been stabbed, I reject without hesitation the proposition that he sent a laconic and unremarkable text message to his wife at some stage after the stabbing. It is literally incredible to think that a man in his position – that is, having been fatally stabbed to the chest minutes before – would do such a thing; if it were the case that he had communicated at all with his wife after he had been stabbed and whilst driving away, it would surely have been a phone call pleading for help and medical assistance. 30. In my opinion, the timing of that text message was central to the version of the offender as to what had happened at the cul-de-sac. Once that central proposition is rejected, her credibility is very badly damaged, not only with regard to the specific events of the Friday morning, but generally, and with regard to all disputed matters. 31. Returning to the chronology, it is remarkable, and troubling, that, at 7:04 AM, the offender telephoned the wife of the man whom she had just stabbed in the chest. Far from revealing what had happened, the offender sought to set up a complicated false alibi. I say that because, as before, I accept the clear evidence of Ms Kelly about what was said on that occasion. 32. Thereafter the offender returned to Pappinbarra by a circuitous route. Once there, incriminating items were crudely concealed by Mr Smith. I am satisfied beyond reasonable doubt that that was done with the agreement of the offender. She took the opportunity to wash herself thoroughly, and changed her clothes. Later, the two of them travelled to Port Macquarie, where the offender purchased a new SIM card in what I am satisfied to the criminal standard was a simplistic attempt to cover her tracks. Later again, the offender sent an anodyne Facebook message to the daughter of the deceased, in yet another attempt to hide her involvement in what had occurred hours before. 33. In the meantime, very shortly after having driven from the cul-de-sac, the deceased had lost control of his vehicle not far from where he had been stabbed. Tragically, he died shortly thereafter from the fatal wound. Investigating police spoke to Ms Kelly, and the offender very quickly became a person of interest. The police travelled to the apartment of Mr Smith at Port Macquarie and spoke to the offender, who told them at least one admitted lie. It is true that that lie was to the benefit of Mr Smith, but I am satisfied beyond reasonable doubt that it was also told in order to protect herself. It is true that, in due course, the offender told the police of her meeting with the deceased, and admitted that she had stabbed him. But those truthful statements were made in a context of a great deal of dishonesty and concealment. 34. Later, the offender exercised her right to silence on legal advice. She was charged with murder, bail refused, and has been in custody ever since. Objective gravity 1. Having found the objective facts of this offence as best I can, I turn to an assessment of its gravity. 2. Of course every homicide, featuring as it does the criminal taking of the life of a fellow human being, is an inherently grave offence. But as I have said, manslaughter can be committed in countless ways. In order to give effect to, amongst other things, the maximum penalty, it is necessary for me to make some assessment of where this particular offence falls on the spectrum of objective seriousness. 3. The facts that I have found, consistent with the verdict of the jury, are that, with an intention to do the deceased grievous bodily harm, the offender stabbed him deeply and forcibly to the chest with a large knife. She did so in response to a sexual assault committed upon her at an isolated location. What she did was unreasonable, and went well beyond what was necessary to defend herself. 4. In my opinion, two facts increase the gravity of what occurred. 5. The first – established by evidence in the trial, and never disputed – is that the gravely ill wife of the deceased has been deprived of her primary carer as a result of the homicide of her husband. As well as that, the evidence in the trial was that the premature death of Ms Kelly is inevitable, with the result that, in the particular circumstances of this case, the homicide of the deceased will substantially contribute to rendering his teenage daughter an orphan. 6. The second unusual – perhaps exceptional – fact of which I am satisfied to the necessary degree is that, some hours before the stabbing occurred, the offender expressed her intention to do physical harm to the deceased by way of the Facebook message. In other words, although the offender did indeed act in self-defence, that was in the context of her having formed an intention to harm the deceased in any event some hours beforehand. 7. Those two as it were "extra" findings of fact inevitably mean that this must be assessed as an objectively very serious example of a manslaughter featuring an intention to inflict grievous bodily harm, but committed by way of excessive self-defence. Subjective features 1. I turn from my extended discussion of the offence and the circumstances surrounding it to a discussion of the life and character of the offender, including her approach to these criminal proceedings. 2. Utilitarian and other discounts? 3. The first matter requiring determination is the effect of the fact that the offender repeatedly offered to plead guilty to manslaughter prior to the trial. Indeed, at the usual pre-trial arraignment in this Court, she entered a plea of not guilty to murder but guilty of manslaughter, which was, of course, rejected by the Crown. 4. Thereafter, at the start of the trial, she pleaded not guilty to murder and not guilty to manslaughter. Not only that, after the Crown led evidence in the trial of the entry of that plea of guilty, she gave sworn evidence before the jury and me that it had not been a "true" plea of guilty, based upon sincere acceptance of guilt, but was rather motivated by fear and confusion. In light of her two pleas of not guilty at the start of the trial, of course defence counsel addressed the jury seeking a complete acquittal. 5. To complete the oscillating forensic history, in the proceedings on sentence two days ago, the offender gave sworn evidence that she accepted the verdict of guilty of manslaughter, did not propose to appeal against her concomitant conviction for that offence, and furthermore was remorseful for what she had done. 6. In light of the repeated offers to plead guilty to manslaughter, including on committal from the Local Court, and indeed the entry of that plea well before the trial, senior counsel for the offender submitted that, in accordance with long-standing authority, and even despite her plea of not guilty to manslaughter at the commencement of the trial, the offender is entitled to a 25% discount on any sentence to be imposed. 7. I cannot accept that submission. Indeed, I seriously doubt whether there should be any utilitarian discount at all. I say that not only because the basis upon which the plea of guilty to manslaughter was proffered varied widely, but also because, as I have said, in the trial the offender literally abjured her plea of guilty in the witness box. 8. I accept, of course, that the principle first identified in Regina v Oinonen [1999] NSWCCA 310 must be applied broadly, and even sometimes surprisingly broadly: R v Johnson (No 5) [2017] NSWSC 1169 at [31] – [35]; R v Manevski (No 2) [2016] NSWSC 1465 at [27] – [32]. 9. But there surely comes a point where the position of an offender, even despite the vindication of their earlier offer by the verdict of the jury, disentitles him or her to that discount. And I would have thought that solemn disavowal of the plea subsequently sought to be relied upon in support of the discount could very well constitute such a point. 10. As far as I know, the Court of Criminal Appeal of New South Wales has never provided guidance with regard to the particular circumstances that have arisen here. Having reflected on the matter, I think that the safest course is for me to provide some utilitarian discount. But I cannot accept that the most unusual forensic history of this matter entitles the offender to a discount of 25% or anything like it. Ultimately, the discount I have applied to the starting point head sentence that I would have imposed is 10%. 11. Separately, defence counsel submitted that there should be a reduction for the focused and efficient way in which the trial was conducted. I accept that submission, and a very small further adjustment has been made to the head sentence as a result. 12. However, in all the circumstances that I have set out at length above, I reject the further submission of defence counsel that this case should give rise to a further discount, based upon the principles about voluntary revelation of unknown guilt, first discussed as long ago as in R v Ellis (1986) 6 NSWLR 603 at 604. As I trust I have demonstrated in my detailed discussion of, and findings about, objective features above, this case neither directly nor indirectly calls for application of such principles. Remorse? 1. The related question to do with the approach of the offender to what she has done and the proceedings arising from it is whether I am satisfied on the balance of probabilities that the offender is remorseful for her criminal act. 2. It is true that, when told that the deceased had died, the offender expressed disbelief and shock. She expressed remorse to the psychologist whose report was tendered without objection on sentence. And she gave evidence on sentence to that identical effect. 3. But my adverse assessment of the credibility of the offender plays an important role in this regard. So do the differing positions adopted by her with regard to her guilt of the offence of manslaughter; in particular her denial on oath of the validity of the plea of guilty that she entered many months ago. So does the stringency of statute in the form of section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW). And even making due allowance for the immense stress of being cross-examined in one's own murder trial, so do the seemingly dismissive, almost heartless remarks that the offender made on oath about the death of the deceased, and to which I invited attention during the proceedings on sentence. 4. I readily accept that the offender regrets the death of the deceased, regrets what she did, and regrets all that has flowed from it, including of course her own incarceration. But acceptance of responsibility for her own criminality is another thing entirely, and I am not satisfied on the balance of probabilities that that has yet occurred. General background of the offender 1. Turning now to matters of more general background, Ms Gilson was born in January 1976, and accordingly was aged 38 as at November 2014, and is aged 41 now. 2. Surely the most important aspect of her life with regard to sentence is that, prior to committing this offence, she had never been charged with, let alone convicted of, any criminal offence whatsoever. Despite my adverse assessment of much that the offender has said, her good character, both before and after the homicide, is of central importance to the sentence that I shall impose (I regard a single offence against prison discipline in the past three years as neither here nor there). 3. As well as that, her life has not been marked by privilege or good fortune. Her parents separated when she was very young, and the permanent severing of contact with her father was difficult for her. A positive aspect is that her mother remarried, and the offender enjoyed a very happy and loving relationship with her stepfather. A very negative aspect of her upbringing is that I accept that she was sexually assaulted as a child by a relative, and has suffered from longstanding and untreated psychological damage ever since. That has included depression and anxiety over a long period, and she has made (at least) suicidal gestures more than once. Her physical health is also far from perfect. 4. The offender fell pregnant at the age of 15, with the result that, despite the fact that I assess her as intelligent and capable, her education was disrupted. She is the mother of three adult children, though as things stand now she is estranged from two of them. Although she has had employment over the years, including an effort to make a success of a photographic studio, at the time of the offence she and Mr Smith were, to a large degree, aimless and impecunious. 5. No doubt being imprisoned for three years whilst facing a count of murder has been a gruelling experience for this woman of otherwise unblemished record. I cautiously accept her evidence that she was the victim of violence in custody, and is now held in more restricted conditions than main discipline, which have in turn limited the resources, especially the therapeutic resources, that are available to her. She has sought to use her time in custody constructively, including working, studying, and getting psychological help to the extent that she is able. Prospects of rehabilitation 1. Despite those positive features, the future is unsettled and unclear. Whether the offender and Mr Smith will reunite in due course is not certain, although whatever eventuates in that regard it seems that the offender will continue to enjoy the love and support of his mother. As I understand it, the offender has neither employment, nor accommodation, nor much family support to return to when she is released in due course. Her untruthfulness inevitably sounds a loud note of caution in my mind as to whether she can rehabilitate herself after what she has done, and after her consequent imprisonment. Having said that, for decades the offender was free of criminality. And as I have said, I assess her as intelligent, and a person who could be capable of achievement if able to overcome her psychological difficulties. She has spoken of her undoubted need for help in that regard. 2. Seeking to weigh up all of those factors, I think one is entitled to a very cautious optimism that Ms Gilson may be able to succeed when released, and that nothing remotely similar to what occurred on 21 November 2014 will occur again. Various matters 1. I turn now to discuss briefly a number of aspects of my task. 2. First, I propose to provide a full backdate to the date of arrest; namely, 21 November 2014. 3. Secondly, these remarks on sentence set out all of the aggravating and mitigating features that I have taken into account, and I do not propose to engage with statute mechanistically. 4. Thirdly, because the offender will be convicted of an offence of serious violence, I am required to explain that it is possible that she will be detained not only past the expiry of her non-parole period, but even past the expiry of her complete head sentence, if it is established that she constitutes a serious danger to members of the community. 5. Fourthly, each counsel helpfully referred me to a large number of comparative sentences, the bulk of them to do with manslaughter committed by way of excessive self-defence. That was of assistance, and I have had regard to those materials. But no particular case was emphasised by either counsel, and because sentencing is an exercise in instinctive synthesis, I shall not pause to analyse any particular case in these remarks. 6. Fifthly, senior counsel for the offender submitted that, in all of the objective and subjective circumstances, the time already served in custody by the offender of a little over three years would constitute a sufficient non-parole period. I respectfully reject that submission: to my mind, such a minimum term of imprisonment would fail to reflect adequately the objective seriousness of this offending, and the moral culpability of this offender. 7. Sixthly and finally, I accept that this is a case that cries out for a finding of special circumstances. I say that because of the otherwise unblemished character of the offender; her undoubted psychological difficulties; and the fact that she has spent three hard years on remand in maximum security prisons. Having said that, the adjustment must be modest, in order to ensure that the non-parole period is not reduced to inadequacy. Victim impact statement 1. A victim impact statement from the teenage daughter of the deceased was tendered by the Crown on sentence, and privately read by me. I have approached it in accordance with well-established principle: R v Previtera (1997) 94 A Crim R 76. The statement recounts how that young woman was driven by despair to consider suicide after the sudden and violent loss of her father, in the context of the grave illness of her mother. As I have said, the loss to a gravely ill woman of her husband and carer, and the loss to a young woman of her father when she will inevitably lose her mother, was established by evidence in the trial. All of that compounds this human tragedy. I extend my condolences to the wife and daughter of the deceased, and indeed any other person who is suffering as a result of his death. No doubt it will be understood by all of them that no sentence I can impose will make good that loss. Conclusion 1. In short, a mature woman of unblemished character, who had suffered long-term psychological damage as a result of being sexually assaulted as a child, was sexually assaulted one evening by a man whom she had only just met. Thirty six hours later, he sexually assaulted her again. She responded by fatally stabbing him in self-defence, an act that was well beyond what was reasonable in the circumstances as she perceived them. In doing so, she committed the offence of manslaughter, not murder. Quite apart from its own inherent gravity, that fatal act left a profoundly ill woman without her husband, and meant that a young girl will inevitably soon be an orphan. The offender has told many lies since then, and a significant proportion of what actually occurred, and why, remains shrouded in mystery as a result. Although I accept that the offender regrets the death of the deceased and all of its consequences, for a number of reasons I am not affirmatively satisfied that she is remorseful for her crime. Having said that, I possess a very guarded optimism about her future, if she is able to receive the therapy she undoubtedly needs. 2. The sentence that I shall now impose seeks to reflect, and balance as best one can, those markedly countervailing factors. Conviction and imposition of sentence 1. Trudy Jane Gilson, you are convicted of the offence of manslaughter. 2. I sentence you to a non-parole period of five years, to commence on 21 November 2014. That will be followed by a parole period of three years, which will expire on 20 November 2022. 3. To express my sentence another way, I have imposed a head sentence of imprisonment for eight years, with a non-parole period of five years, with a full backdate. 4. Were it not for the utilitarian discount and the very small discount for the way the trial was run, I would have imposed a head sentence of imprisonment for nine years. Were it not for my finding of special circumstances, I would have imposed a non-parole period of six years. 5. The first date upon which the offender will be eligible for possible release to parole is 20 November 2019. ********** 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: 01 December 2017