Pitt v R

[2014] NSWCCA 70

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Pitt v R [2014] NSWCCA 70

Hearing dates:

23 April 2014

Decision date:

07 May 2014

Before:

Simpson J at [1]; Hall J at [71];Harrison J at [72]

Decision:

(i) leave to appeal granted;

(ii) appeal allowed, sentence quashed;

(iii) in lieu thereof, the applicant be sentenced to 5 years imprisonment made up of a non-parole period of 3 years, commencing on 17 January 2011 and expiring on 16 January 2014, with a balance of term of 2 years, expiring on 16 January 2016.

Catchwords:

CRIMINAL LAW - appeal - sentence - manslaughter - plea of guilty - substantial impairment by abnormality of mind - s 23A Crimes Act 1900 - whether sentence manifestly excessive - error found - whether error in failure to find special circumstances or in failure to vary statutory ratio to reflect special circumstances - error found - leave to appeal granted - appeal allowed - sentence quashed - applicant re-sentenced

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(c), s 44(2)
Crimes Act 1900 (NSW), s 23A
Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
R v Chen [2012] NSWSC 1000
R v Engert (1995) 84 A Crim R 67
R v Hollaway [2013] NSWSC 218
R v Terrence David Kain [2013] NSWSC 638
Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465

Category:

Principal judgment

Parties:

Leonard Arthur Pitt (Applicant)
Regina (Respondent)

Representation:

Counsel:
E Ozen (Applicant)
V Lydiard (Respondent)
Solicitors:
Aboriginal Legal Services (NSW/Act) Ltd (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

File Number(s):

2011/15850

 Decision under appeal 

Jurisdiction:

9111

Citation:

R v Pitt [2012] NSWSC 1549

Date of Decision:

2012-12-14 00:00:00

Before:

Latham J

File Number(s):

2011/15850

Judgment

1. SIMPSON J: On 17 January 2011 the applicant was arrested and charged with the murder of Jamie Collins earlier that day. On 26 November 2012, he entered a plea of guilty to an alternative charge of manslaughter. The Crown accepted the plea in full satisfaction of the indictment. It accepted the plea on the basis that the applicant suffered a substantial impairment in his capacity to understand events, or to judge whether his actions were right or wrong, or to control himself due to an abnormality of mind arising from an underlying condition, at the time of the offence, within the meaning of s 23A of the Crimes Act 1900 (NSW). The offence of manslaughter is subject to a maximum penalty of imprisonment for 25 years.

1. On 14 December 2012 Latham J sentenced the applicant. She imposed a term of imprisonment of 8 years, commencing on 17 January 2011, with a non-parole period of 6 years which will expire on 16 January 2017.

1. The applicant seeks leave to appeal against the sentence. He contends that it is, in the circumstances, manifestly excessive. He also asserts error in that the sentence did not reflect special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"), permitting a reduction in the statutory ratio between the head sentence and the non-parole period.

The facts

1. The facts of the offence were put before Latham J in the form of lengthy and highly detailed "Crown Case Statement". Also in evidence were transcripts of no fewer than 16 telephone calls made to the Emergency Triple 0 line. These are of some significance. The facts were, essentially, as follows.

1. The applicant was the lessee of a Department of Housing home unit in Granville. As at January 2011, two other men occupied the unit with him. They were Jamie Collins and Travis Hunter. On occasions, Ben Collins (the brother of Jamie Collins) and his girlfriend, Jessica Raby, also stayed in the unit.

1. On Sunday 16 January 2011 Ben and Jamie Collins spent some hours working on Raby's motor vehicle. By way of thanking them, Raby purchased some beer and spirits. The three went to the applicant's unit and began to consume the alcohol, giving some to the applicant. An argument soon broke out. At about 7.00pm Raby and the Collins brothers purchased more alcohol. When they returned to the unit after making that purchase, they found that the applicant had left a note on the door saying that he had gone away for two to three weeks. This was not true. They entered the unit and found that the applicant was present.

1. What followed was a long and chaotic night during which the applicant and Jamie Collins repeatedly argued. The applicant was aggressive towards Jamie Collins. It appears that Jamie Collins was also aggressive towards the applicant. Indeed, there is good reason to believe that Jamie Collins, either alone or with his brother, initiated the aggression. Between 9.00pm and 11.30pm on that evening, a neighbour called police on four occasions because of the noise and apparent violence in the applicant's unit. The applicant himself called police on no fewer than 10 occasions, the first at just after 9.00pm. Police attended and arranged for an ambulance to convey the applicant to hospital. They advised Jamie Collins that they did not intend to charge him, but did intend to apply for an Apprehended Violence Order in favour of the applicant. Although it is not specifically so stated in the Crown Case Statement, it is clear that, at some time, the applicant was discharged from the hospital and returned home.

1. Hospital records that were available at sentencing but not admitted into evidence apparently showed that the applicant was admitted shortly after 9.00pm and discharged at 3.35am on the morning of 17 January. His next call to the emergency number was made at 4.02am.

1. The sounds of confrontation and violence continued. Police again attended at about 4.00am. Police entered the unit and observed broken furniture and beer bottles scattered around the living area.

1. The applicant asked police to remove Jamie Collins from his unit. The police informed the applicant that they had sought an Apprehended Violence Order, and advised him to seek the assistance of the Department of Housing or the Tenancy Tribunal to arrange for the eviction of Jamie Collins from his unit.

1. Just before 6.00am, the applicant attended the Merrylands Police Station, continuing to ask for the removal of Jamie Collins from his unit. Police took no action.

1. The applicant returned to his unit, where he stabbed Jamie Collins in the chest. He immediately told a neighbouring resident what he had done. The neighbour contacted police. The applicant spoke to the police operator, repeating that he had stabbed Mr Collins and requested an ambulance. He remained at the premises until police arrived, and repeated his admission. On their arrival at the unit, police found the body of Jamie Collins. He had a single stab wound to the chest. The applicant was arrested. He has remained in custody since that date.

1. There is no direct evidence as to what took place in the applicant's unit immediately before, and at the time of, the stabbing. However, a clear picture of the events of the hours leading up to the stabbing can be discerned from the transcripts of the numerous calls to the emergency number.

1. The first call was made by the applicant at 9.04pm. He said:

"I need a policeman, I've been assaulted, all right. I took, I took a couple of boys in for a couple of days and - - -"

The operator asked who had assaulted him and he identified Jamie Collins. He told the operator that he had a head wound and was passing out. He gave his name.

1. The second call was made by a neighbour, Ms Amira Yako, at 9.07pm. What she reported was consistent with what the applicant had said. Ms Yako said that she was calling on behalf of Unit 7 (which was the applicant's unit). She said that the applicant was "bringing a lot young people in his place and using drugs a lot". She said:

"... you can see the people one day using drugs, they come like crazy and they was fighting now and I don't know what's happened to him but for us it's very hard."

She identified one of the "boys" present as "Jimmy" and another as "Trevor", and said there was another person.

1. The next call was made by the applicant at 9.13pm. Police arrived just as he made the call, presumably in response to his earlier call, or Ms Yako's call. The applicant told the operator:

"... I just want this person out of my unit tonight."

It was after this call that the applicant was taken to the hospital.

1. At 10.43pm Ms Yako rang again. Her son also participated in this conversation. The transcript of the call records that Mr Yako said:

"... there's a massive fight happening and shit and they're breaking all his furniture ...

We're thinking like all the banging and plates and things getting flung everywhere and things breaking and stuff like that ...

... we've seen them like verbally downstairs they were full of like abusin' each other verbally and then like they were going up and down the hallway and they were just swearing and slamming all their doors and stuff ...

... they dropping the furniture from the (indistinct) ..."

The operator told Mr and Ms Yako that the police had already been to the premises. Mr Yako said:

"... it's still happening."

1. At 11.12pm and 11.19pm, Ms Yako made two further calls to the emergency number. In the first she said:

"My neighbour's just been bashed by these people that are living in there ...

... he's been taken to hospital but they smashed up his place."

She said she wanted the police to come and remove the perpetrators who, she said, were "laughing about it". She essentially repeated that in the subsequent call at 11.19pm.

1. The next call was made by the applicant at 4.02am on 17 January. He told the operator that his place was "being trashed", and that this had happened while he was at Westmead Hospital. He identified Jamie Collins, Ben Collins and Travis (Hunter) as the perpetrators. He made this call from outside the unit. In response to a question from the operator, he said he did not know whether they were still inside. He said:

"I just had a look, a quick look in and it seemed an absolute disaster, you know. yeah I, I need the police here urgently, urgently."

1. The applicant was transferred to the Police Assistance Line and he repeated what he had said, again, identifying Jamie Collins as having smashed his property and assaulted him. He said he needed police urgently because he was too frightened to enter his own unit.

1. The applicant called again at 4.20am. He said that he was running along High Street, being chased by Jamie Collins and Ben Collins. He said again that he had a head wound but had just returned from Westmead Hospital. He called again, again saying that he was being chased, this time by people armed with knives. At an early stage in this call, he said:

"Here they come, here they come, fuck, quick, I need help. I'm running ... towards Parramatta."

1. At 4.51am he called again, and said:

"... My name is Leonard Pitt and for the last, yeah nearly 4, 5 hours now I'm, it's just been absolute chaos at my unit.

... It happened with an assault by Jamie Collins and, and - - -"

1. He called again at 4.58am, saying that:

"There's people that are coming back to my unit, yeah.

... After trashing my unit, after trashing my unit?"

1. He complained that when police had attended:

"... they apprehended one and just let him go like, he was just some sort of jaywalker and yeah, yeah."

1. At 5.07am the applicant called again, identifying himself and saying that the police had not arrived:

"... but in the meantime, some, the one that they're lookin' to talk to has arrived back and makin' threats. I, I can't stay with, I can't have people stayin' with me, makin' threats, I can't have people stayin' with me makin' threats, I can't have people - - -

... One assaulted me, the other one's have made threats and, and, and when I gave 'em adequate notice to leave my unit, they - - -

... It's just that my place is trashed ..."

1. The applicant called again 5.19am, complaining, of the police:

"They, they're, they're refusing to give me quality care and, and, and they're being abusive to me, I'm runnin' - - -"

The operator then spoke to police, who were at the premises. A police officer said:

"I'd say this place has been the, like an absolute nightmare tonight."

The operator replied:

"I know, I know I've spoken to this chap, I think four times alone."

1. The final call at 6.56am, was made by the neighbour to whom the applicant spoke in the street. He told the operator that he needed police to attend, that:

"Just a gentleman come here and he said he stabbed someone."

He gave the applicant's name as that person. The applicant then spoke to the operator, who asked where Jamie Collins was at that time. The applicant replied:

"Yeah. I think he's dead."

The operator asked where he stabbed Jamie Collins and he said "in the heart".

The applicant's personal circumstances

1. A wealth of material concerning the applicant's personal circumstances was placed before the sentencing judge. He was born in December 1970 in Moree, the eldest of five children of an Aboriginal family. Evidence of his early life was given in the form of an affidavit sworn by his younger brother, known as Keith Reber. When the applicant was less than three years old, he and Keith were fostered to the Reber family in Sydney. They lived with the family, first in northwest Sydney, and then in the central west of NSW, until the applicant left school after about year 8 or 9 and returned to Sydney. The applicant's foster parents were sensitive to the children's Aboriginal heritage and sympathetic to their mother. They provided a nurturing environment. However, the applicant began using alcohol at an early age, and, according to Keith Reber, became addicted. After leaving school the applicant worked for some time as a tyre fitter, and then, for 10 years, as a clerk with TAFE. Notwithstanding his alcohol addiction, he has a very limited criminal history. In 1987, at the age of 16, he was found guilty in the Children's Court of stealing. He was committed to the care of Mr and Mrs Reber until 18 years of age, conditioned to be of good behaviour. Thereafter, he has convictions for offensive language, resisting police and having goods in custody. He has always been dealt with by way of non-custodial penalty and has never previously been sentenced to imprisonment. He has no convictions for offences of violence.

1. Also in evidence were two references, each attesting to the absence of aggressive behaviour by the applicant. Ms Rosemary Clark, a registered psychologist working in a facility specifically to provide support to sufferers of schizophrenia, said that she had known the applicant for about 5 years, and that he had been a very popular and exceptional member of the facility, and had enthusiastically participated in self-development groups and goal-setting programmes. She described him as demonstrating respect, gentleness and kindness in his interactions at the facility.

1. However, it has long been known that the applicant suffers from a severe mental disorder.

Psychiatric history

1. A very detailed chronology of the applicant's psychiatric history was provided to the sentencing judge, drawn, it appears, from comprehensive medical records, which were available to the court, but did not ultimately become part of the evidence (and are therefore not available to this Court). Instead, a detailed summary was provided.

1. The chronology reveals that the applicant was, in 1995, admitted to Tamworth Hospital, with a history of drug and alcohol problems. He was diagnosed, inter alia, with psychosis, paranoid persecutory delusions, and showing "overt violence". He was also said to have suicidal ideation. He was then 24 years of age. Medication was prescribed for him.

1. Psychotic disorder and suicidal ideation - and suicide attempts - are recurrent themes in the reports of the numerous admissions to psychiatric facilities that followed.

1. In April 2002 the applicant was diagnosed as suffering from polydrug use and schizoaffective disorder; in October of the same year, the diagnosis was drug induced psychosis and schizophrenia. That diagnosis has been repeated many times. Different medications - or, at least, medications with different trade names - have been prescribed.

1. Included in the lengthy history are many instances of non-compliance with prescribed medication. For some years prior to the offence, the applicant's medication was a drug called Clopixol. He had ceased taking this medication about one month prior to the offence.

1. On his arrest on 17 January 2011, the applicant was taken to the Metropolitan Remand and Reception Centre ("MRRC") and assessed. In May he was transferred to the mental health accommodation area of the MRRC where he came under the care of Justice Health. His treating doctor was then Dr Andrew White, a Career Medical Officer with specialty in psychiatry. The applicant appears to have remained in that unit until January 2012 when he was again transferred, this time as a "correctional patient" under the provisions of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the MH(FP) Act") to the Long Bay Prison hospital. Dr White reinstituted the treatment regime that had been prescribed for the applicant prior to his arrest. The provisions of the MH(FP) Act have required regular reviews of the applicant's condition. These reviews have been conducted by Dr Gordon Hyde, psychiatry registrar.

1. Initially, in January 2012, the applicant was assessed by Dr White as unfit to be tried. However, by May 2012 Dr White assessed him as fit to be tried.

1. For the purposes of sentencing, the applicant was examined by Dr Bruce Westmore and Dr Richard Furst, both forensic psychiatrists. Each took a similar history, consistent with the chronology to which I have referred.

1. Dr Westmore examined the applicant in September 2011. At this time he had been receiving a drug called Clozapine, which appears to be similar to Clopixol he had been receiving prior to arrest.

1. Dr Westmore reported on his mental state examination as follows:

"Mr Pitt presented as an Aboriginal man who was pleasant and cooperative. Eye contact was significantly reduced in fact there was almost no direct eye contact at all. He spoke spontaneously and expansively but his history was a little rambling and disjointed and he occasionally demonstrated unusual mannerisms with his hands and the position of his head. The rate and flow of his speech patterns were normal and he was not suffering form or thought disorder (sic). His affect was very flat and his mood state restricted. He described a history [of] auditory hallucinations and ideas of reference. These may still be present but are reducing in intensity. He was generally alert and attentive."

1. Having reviewed the material concerning the events of 16-17 January, Dr Westmore said:

"Based on his own history and the history noted in the Justice Health file after he was incarcerated, it is probable that he was mentally ill at the time of the offence. On the history he provides, I am not able to link in a direct way his mental illness to the stabbing of the deceased, but I believe he could raise the defence of substantial impairment. He was suffering an underlying condition, specifically a chronic paranoid schizophrenic illness, which is likely to have been exacerbated as the result of his failing to take medication leading up to the incident."

1. Dr Furst reported on 5 November 2012. He also reviewed the applicant's psychiatric history and his account of the offence. He considered that the applicant was:

"... suffering from an acute relapse of his chronic schizophrenia at the time in question before the court as a consequence of his non-compliance with medication, relapse into drinking alcohol, and signs of treatment resistance."

He reported:

"At the time of the offence in question, he was showing a number of signs of psychosis and was probably intoxicated. He had been frustrated in his efforts to have his 'flatmates' including Jamie Collins, evicted. There was some evidence that he was assaulted earlier that evening and his unit was 'trashed'. He was also chased by the brother of the deceased.

In my opinion, he probably lacked capacity to judge the wrongfulness of his actions by virtue of his mental illness acute paranoia and the threat he felt at the time. I doubt that he was able to control himself at the time or think through the consequences of his actions in a rational and calm manner."

1. Dr Stephen Allnutt was retained by the Director of Public Prosecutions to provide a report with specific emphasis on the issues relevant to s 23A of the Crimes Act. On 28 October 2012 Dr Allnutt reported:

"I believe there would be reasonable grounds to conclude he might have discontinued medication as a consequence of break through symptoms of psychosis that he was experiencing as early as August 2010 and that as a consequence he likely experienced a further deterioration in his mental state in the time leading up to the alleged offence so that as a consequence of his underlying condition (paranoid schizophrenia) he was at the material time experiencing auditory hallucinations and persecutory delusions - 'an abnormality of mind'."

The Remarks on Sentence

1. After recounting in some detail the relevant facts of the offence, Latham J said:

"23 The objective gravity of the offence may be legitimately assessed as considerable, if regard is had to the force required to inflict the wound and the position of the wound on the body. There is no suggestion that the victim was armed, although I accept that the victim may have physically assaulted the offender shortly before he was stabbed and I accept that the victim and/or his brother had provoked the offender earlier by damaging his personal belongings.

24 There are however a number of features of the offence that, whilst technically not purely objective, impact upon the moral culpability of the offender and therefore impact indirectly upon the gravity of the offence. These factors include a complex interrelationship between the offender's psychiatric state and his perception of the threat posed to him by the victim and the victim's brother. In order to appreciate the offender's state of mind, some brief reference to his psychiatric history is required."

Her Honour then reviewed the psychiatric evidence.

1. Notwithstanding Dr Westmore's inability directly to link the applicant's mental illness with the commission of the offence, Latham J found:

"37 Having regard to the offender's psychiatric history and the fact that the offence is entirely consistent with the offender's past symptomatology, I have reached the conclusion that the offender's substantial impairment was a significant contributor to the course of events that culminated in the offender taking the victim's life."

1. Also by reason of the applicant's psychiatric history, her Honour declared herself unable to be satisfied beyond reasonable doubt that his intention was to kill Jamie Collins; rather, she held, he intended to cause serious physical harm.

1. Accordingly, she characterised the applicant's moral culpability as "of a low order". She expressly said that, in coming to that conclusion, she did not overlook the fact that the applicant had ceased his medication and treatment as early as September or October 2010. She held that that too was also a consequence of his inadequately controlled psychosis.

1. Having regard to those findings, her Honour held that the applicant's mental illness rendered him an unsuitable vehicle for general deterrence. She considered specific deterrence to be of more relevance, although she accepted that the treatment he is now receiving is more likely to stabilise his schizophrenia.

1. Her Honour then said:

"45 Notwithstanding the offender's subjective features, it is necessary to impose a sentence of imprisonment that recognises the offender's role in taking the victim's life. That sentence will be discounted by 20% to take account of the offender's offer to plead to manslaughter in May of this year. Whilst I accept that the offender's mental illness is capable of affecting the relative length of the non parole period, his need for ongoing treatment has already been factored into the sentencing exercise. In addition, the non parole period ought not be reduced below the point that adequately reflects the gravity of the offence."

1. Her Honour accordingly sentenced the applicant as set out above. It is to be observed that the non-parole period and the head sentence are in accordance with the statutory ratio referred to in s 44(2) of the Sentencing Procedure Act. That is the basis for the second ground of the proposed appeal.

The application for leave to appeal

1. Two grounds of appeal are identified. They are:

"GROUND 1: The sentence imposed was manifestly excessive.

GROUND 2: The sentencing judge erred in failing to find special circumstances. Alternatively the sentencing judge erred in failing to vary the statutory ratio to reflect special circumstances."

Ground 1: manifest excess

1. It was not submitted that a sentence of 8 years with a non-parole period of 6 years following a plea of guilty was necessarily outside the range legitimately available in manslaughter cases. It is well known that because the range of conduct and circumstances that give rise to a conviction of manslaughter are so variable, the applicable sentences are also highly variable. What was submitted on behalf of the applicant was that, taking into account the particular circumstances of this offence, the sentence imposed was manifestly excessive. In this regard considerable emphasis was placed upon the applicant's mental illness. There is no doubt that his psychiatric condition is severe.

1. The manner in, and the extent to, which mental illness may affect a sentencing decision has been the subject of many decisions of this Court. In R v Engert (1995) 84 A Crim R 67, Gleeson CJ said:

"A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2) [Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465]. Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender."

1. Later, with particular regard to the impact of mental illness on a sentencing decision the Chief Justice said:

"In truth however, for the reasons given at the commencement of this judgment, the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system."

1. In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1, McClellan CJ at CL summarised the relevant principles in the following way:

"177 ...

● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence ...

● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed ...

● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced ...

● It may reduce or eliminate the significance of specific deterrence ...

● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence ... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public ..." (internal citations omitted)

1. It will be seen from this list that, while, generally, the existence of relevant mental illness may, for different reasons, point to a more lenient sentence, the countervailing consideration is the possibility that the offender poses a danger to the community, with the result that considerations of specific deterrence indicate a more severe sentence, as may considerations of the need for community protection. In response to the applicant's submissions in respect of the approach taken by Latham J to the applicant's mental illness, the Crown relied upon the applicant's long history of non-compliance with medication. That can only be relevant, so far as I can see, if it provides the basis for an inference that, unless restrained, the applicant is likely to commit further offences. Certainly, it would not accord with principle to impose a lengthier sentence than would otherwise be required for the purpose of ensuring that the offender complied with a prescribed medication regime. The evidence denies any inference that the applicant, unless medicated, is likely to commit further offences. The many occasions on which he ceased taking prescribed medication were not associated with any criminal activity. Indeed, the applicant's relatively minor criminal history, in spite of his severe psychiatric condition, is very much to his credit. Even during periods of non-compliance with his medication, the applicant cannot be said, generally, to pose a threat to the community.

1. Moreover, the contemporaneous record of events as disclosed in the emergency call transcripts shows that the applicant's offence was committed only after a long history of extreme provocation on the part of Jamie Collins, and, possibly, his brother. Even if the assessment of the applicant's perception of the events of that evening should be treated with some circumspection due to his mental illness, the parallel and consistent accounts contemporaneously given by Ms Yako and her son provide strong support for the conclusion that it was the Collins brothers who were the initial aggressors, and the principal aggressors, and that their aggression persisted, even when the applicant was absent at the hospital, and after his return.

1. It was because of the applicant's psychiatric history that Latham J concluded that his moral culpability was "of a low order". In my opinion, that conclusion is not reflected in the sentence imposed. Moreover, there are other factors, not mentioned in the Remarks on Sentence, that also impact on the level of moral culpability. Those factors are the continuing behaviour of the Collins brothers to which I have just referred.

1. In my opinion, the conduct evidenced by these calls substantially reduces the applicant's culpability. It is not to be overlooked that the calls themselves represented his own repeated attempts to have the conduct that eventually resulted in the stabbing of Jamie Collins brought to an end.

1. For these reasons I am of the view that Ground 1 is made out.

1. The applicant relied upon a number of previously decided cases to show that the sentence was out of alignment with other comparable cases. A schedule of cases involving sentences for manslaughter where manslaughter was accepted or found due to substantial impairment under s 23A of the Crimes Act was provided. Specific reference was made to three: R v Terrence David Kain [2013] NSWSC 638; R v Hollaway [2013] NSWSC 218 and R v Chen [2012] NSWSC 1000. It is not necessary to go into the detail of these cases. They do have significant parallels with the present case, and the Crown did not suggest otherwise. In each case, the sentence imposed was significantly less than the sentence imposed on the applicant. The Crown did not produce any comparable case in which a sentence of the magnitude of 8 years was imposed.

1. Individual cases, of course, cannot establish that a particular sentence is unjust. They can, however, provide some sense of prevailing sentencing patterns. The cases relied upon do not, in my opinion, of themselves establish that the sentence imposed was manifestly excessive. They do, however, provide some comfort, or assurance, that the view I have otherwise reached is correct.

Ground 2: special circumstances

1. This ground is framed as it is because there is some doubt whether the sentencing judge found special circumstances or not. What she said is contained in para [45], set out above (at [49]). If she did intend to make such a finding, it was not reflected in the sentence imposed.

1. I am satisfied that this was a case in which special circumstances ought to have been found, and, indeed, the Crown at sentencing expressly so conceded. I am further of the view that such a finding ought significantly to reduce the proportion that the non-parole period bears to the head sentence.

1. The sentence I propose will reflect the severe degree of the applicant's mental illness, as well as the significant degree of provocation involved in the conduct of the Collins brothers towards the applicant (see Sentencing Procedure Act, s 21A(3)(c)).

1. I propose that leave to appeal be granted, the sentence imposed be quashed, and in lieu thereof the applicant be sentenced to imprisonment for 5 years, commencing on 17 January 2011, with a non-parole period of 3 years, expiring on 16 January 2014. The applicant would therefore be entitled to immediate consideration for parole. Of course, it will be necessary for the relevant authorities to make the appropriate inquires and determinations under the MH(FP) Act.

1. It will be observed that, on the orders I propose, the time is past when the applicant would first have been eligible for consideration for release on parole. That comes about because it is now more than 3 years since the commission of the offence, and the applicant has been in custody for the whole of that time.

1. The delay is attributable to a number of factors. One factor is the need for the applicant to be psychiatrically assessed with respect both to his fitness to be tried, and the s 23A (Crimes Act) issues. It is not clear how long those processes took, although, as is recorded in the Remarks on Sentence, the applicant offered a plea of guilty to manslaughter in May 2012.

1. The applicant was sentenced on 14 December 2012. The Notice of Appeal is dated 9 October 2013. Just why it took 10 months for the Notice to be filed is not explained. The result, however, is that (should the orders I propose be made) the applicant is entitled to immediate consideration for parole. It is to be hoped that the relevant authorities act expeditiously to ensure that that assessment takes place.

1. The orders I propose are:

(i) leave to appeal granted;

(ii) appeal allowed, sentence quashed;

(iii) in lieu thereof, the applicant be sentenced to 5 years imprisonment made up of a non-parole period of 3 years, commencing on 17 January 2011 and expiring on 16 January 2014, with a balance of term of 2 years, expiring on 16 January 2016.

1. HALL J: I agree with Simpson J.

1. HARRISON J: I agree with Simpson J.

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Decision last updated: 08 May 2014