R v Bryce (No 5)

[2014] NSWSC 1184

Supreme Court

New South Wales

Medium Neutral Citation:	R v Bryce (No 5) [2014] NSWSC 1184
Hearing dates:	8 August 2014
Decision date:	29 August 2014
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	For the offence of manslaughter, the offender is convicted and sentenced to a term of imprisonment comprising a non-parole period of six years and an additional term of two years.
Catchwords:	CRIMINAL LAW - sentence - offender acquitted of murder but found guilty of manslaughter - unlawful and dangerous act - no direct evidence as to precisely how injury causing death was occasioned - resolution of uncertainty as to the basis upon which offender is to be sentenced - offence aggravated by not seeking medical attention for victim - moderate to high risk of reoffending.
Legislation Cited:	- Crimes Act 1900 (NSW), s 24, s 558 - Crimes (High Risk Offenders) Act 2006 (NSW), s 5A, s 25C - Crimes (Sentencing Procedure) Act 1999 (NSW), s 9, s 21A, s 44, s 54A
Cases Cited:	- Berrier v R [2009] NSWCCA 40 - Dulihanty v R [2013] NSWCCA 275 - MAH v R [2006] NSWCCA 226 - R v Blacklidge (Court of Criminal Appeal (NSW), 2 December 1995, unrep.) - R v Bryce (No 2) [2014] NSWSC 498 - R v Loveridge [2014] NSWCCA 120 - R v Olbrich [1999] HCA 54; 199 CLR 270 - R v PL [2009] NSWCCA 256; 199 A Crim R 199
Category:	Sentence
Parties:	Crown (Prosecutor) John Keith Bryce (Offender)
Representation:	Counsel: E. Balodis (Crown) P.S. Williams (Offender) Solicitors: Director of Public Prosecutions (Crown) Andrew Scali (Offender)
File Number(s):	2012/156908

Judgment

1. On 28 April 2014 the offender, John Keith Bryce, was arraigned on an indictment that charged him with the murder of Katryn Barton, also known as Catherine Jane Barton, at Waterloo on or about 15 May 2012.

1. Mr Bryce pleaded not guilty to murder. On 19 May 2014 the jury returned a verdict of not guilty to murder, but guilty to manslaughter. On the return of their verdict, I convicted Mr Bryce. The proceedings were adjourned to 8 August 2014 for submissions on sentence.

1. The maximum penalty for the offence of manslaughter is imprisonment for 25 years (Crimes Act 1900 (NSW), s 24). There is no standard non-parole period for the purposes of s 54A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the "Sentencing Act") for manslaughter.

Discovery of Ms Barton

1. At around 9:15pm on 15 May 2012 two police officers attended a Department of Housing apartment complex in Waterloo. They went to a unit occupied by Mr Bryce and knocked on the door (the "unit"). They were seeking to interview Mr Bryce in relation to a complaint that he had assaulted Ms Barton earlier that morning. After they entered the unit they noticed Ms Barton was lying on top of a mattress in the middle of the lounge room floor. She appeared to be sleeping very heavily.

1. The officers went with Mr Bryce to another room and spoke to him about the earlier incident. When the officers returned to the lounge room they became concerned about Ms Barton's condition. They asked Mr Bryce to wake her but he was unable to do so. The officers called an ambulance. She was taken to St Vincent's Hospital. While they were at the apartment the officers asked Mr Bryce: "How long has she been like that?" Mr Bryce told them that he went to sleep and when he woke up Ms Barton was next to him. He said that she had come back to the unit "three hours ago or something".

1. Ms Barton was seen by a consultant neurosurgeon, Dr Richard Parkinson, at 1:40am on 16 May 2012. By that stage she was in a deep coma. Dr Parkinson observed her to have fixed and dilated pupils. He said that was indicative of "impending death". A "CT" scan indicated she had suffered a major head injury with intracranial bleeding. Ms Barton was maintained on a ventilator. This was withdrawn following consultation with her family. She passed away at 1:40pm on 17 May 2012.

Events up to her death

1. To understand how Mr Bryce came to be convicted of manslaughter it is first necessary to outline the course of events which led to the police attending that evening. Most of the evidence concerning the following events was led at the trial, although some of it was supplemented by evidence tendered at the sentence hearing.

1. Mr Bryce met Ms Barton in May 2011. They commenced a relationship. About six weeks prior to Ms Barton's death she moved into the unit, which was in Mr Bryce's name. At the time of her death Ms Barton was 49 years old. Mr Bryce was 41 years old.

1. As I will explain, both Mr Bryce and Ms Barton had difficult personal histories. Mr Bryce's counsel described them as dysfunctional people in a dysfunctional relationship. Harsh as this assessment appears to be, I accept it as accurate. They both had histories of abusing drugs. Certainly their relationship appears to have been volatile. The post mortem of Ms Barton's body revealed that she had previously suffered head injuries which appear to date to a time well prior to the events I am about to describe. There was no satisfactory evidence to suggest that Mr Bryce caused them. Also at the trial there was tendered a body of material which suggested that Ms Barton had a tendency "to act in a violent [and] aggressive manner in public places and ... a tendency towards self-harm" (R v Bryce (No 2) [2014] NSWSC 498).

1. On 6 April 2012 there was a confrontation between Mr Bryce and Ms Barton. Mr Bryce provided a statement to the police in which he accused her of punching and scratching him as well as threatening him with a knife. Ms Barton attended at the hospital on the same day and told the hospital staff that Mr Bryce had injured her face. In the end result, an interim apprehended violence order ("AVO") was taken out against Ms Barton, naming Mr Bryce as the protected person. Whatever its terms were, they continued living together.

1. On Wednesday, 9 May 2012, the proceedings concerning the AVO were before the Local Court. Mr Bryce told the Court that he held no fears from Ms Barton. The interim order was discharged.

1. At around 6:00pm on Sunday, 13 May 2012, Mr Bryce and Ms Barton visited some friends. During the visit Mr Bryce received a phone call. Ms Barton became very angry. She chased Mr Bryce out into the hallway of the apartment. At the end of the hallway he cowered in a corner, holding his hands up to protect his face. Ms Barton proceeded to hit him. Their friends intervened.

1. Very early in the morning of 14 May 2012 Mr Bryce and Ms Barton visited the hospital. The hospital's records document Ms Barton complaining of chest pains and her being aggressive towards hospital staff.

1. Whatever friction there may have been between the two dissipated during 14 May 2012. At around 12:30pm they left a toy truck at the door of the friends' place. At around 6:30pm they returned to their friends' residence. Mr Bryce asked for some cigarettes. Ms Barton inquired if they had received the present that had been left earlier.

1. However, the evening was not peaceful. Two residents of the unit immediately below Mr Bryce's unit gave evidence at the trial about a commotion they heard in the unit upstairs from late in the evening on 14 May 2012 until early in the morning on 15 May 2012.

1. In a statement that she provided to the police the next day, Ms Barton claimed that there was a prolonged confrontation between her and Mr Bryce that had started at around 1:00am. She said that at around 5:40am while she was sitting on the toilet he hit her over the head with a toilet brush. She escaped from the unit and went downstairs. Mr Bryce denied hitting Ms Barton. The next day he told police that Ms Barton has "attacked me, she was off her head last night ...".

1. A further confrontation took place in the foyer of the unit block on the morning of 15 April 2012. At around 7:30am Ms Barton approached a security officer at the concierge desk. She was bleeding from her head and requested an ambulance. She told the officer that Mr Bryce had hit her with a toilet brush. She repeated this claim to other staff members. She told them that she had been hit with the toilet brush while she was talking on the phone to her father. At some point Mr Bryce walked into the concierge area. He and Ms Barton started yelling at each other. Ms Barton threw a perfume bottle at him, but it missed. He left.

1. Shortly afterwards, police and ambulance officers arrived. There is some conflict in the evidence about Ms Barton's lucidity at this time. One of the concierge staff, Georgia Zimonopoulos, recalled Ms Barton being "very agitated, talking gibberish and moving from one thing to another and that it didn't make sense". However, an ambulance officer, Olivia Mitchell, recalled Ms Barton talking sensibly and giving a coherent recollection of events. However she also agreed that, based on her observation of Ms Barton's speech and mannerisms, she suspected Ms Barton may have been "under the influence of drugs or alcohol". Ms Mitchell gave Ms Barton a score of 15 out of 15 on the Glasgow Coma Scale, a scale that aims to provide an objective assessment of a person's mental functioning.

1. Ms Barton was taken to a hospital just after 9:00am. Sutures where applied to her scalp. She was seen by Dr Rory Donald McKeown. Dr McKeown also gave her a 15 out of 15 rating on the Glasgow Coma Scale. Ms Barton was discharged around 10:48am.

1. In the meantime police had spoken to Mr Bryce and inspected the unit. They did not find a toilet brush. The police advised Mr Bryce that they would return and take a statement from him after they attended the hospital to see Ms Barton. At 10:53am two police officers returned to the apartment building in order to arrest Mr Bryce. They knocked on the unit door, but there was no response. Mr Bryce's access card records indicate that he returned to the apartment complex at around 12:05pm. Police returned to the unit around 1:00pm. They knocked on his door, but he did not answer. Between 1:30 and 2:00pm Mr Bryce rang '000' and asked to speak to the police. In one of the calls he claimed that he was bashed by Ms Barton. The police returned to his unit, but again he did not answer.

1. After leaving hospital Ms Barton went to Redfern police station. At about 12:17pm she signed her statement and had photos taken of her injuries. She left at 12:40pm. At the trial a police officer stated that he did not experience any difficulties in speaking with Ms Barton while she was at the police station.

1. Tendered at the trial was CCTV footage from various locations recording Ms Barton's whereabouts during the afternoon of 15 May 2012. At around 1:21pm Ms Barton attended a methadone clinic in Enmore. At 4:28pm she bought a Keno ticket from a hotel in Enmore. At 4:50pm she attended a pharmacy in Enmore. Witnesses from the hotel and pharmacy testified that they did not experience any difficulty in interacting with Ms Barton.

1. Sometime between 5:04pm and 5:06pm Ms Barton returned to the apartment building.

1. CCTV footage and access card records show Mr Bryce entering and leaving the elevator on his way out of the apartment complex at 6:57pm. They indicate that he returned between 7:09 and 7:13pm.

1. Two witnesses, Luke Stokes and Raci Parlak, gave evidence of seeing a man and a woman in the corridor outside Mr Bryce's unit that evening. There was no doubt that it was Mr Bryce and Ms Barton. They both recalled that the woman needed assistance to stand up. They thought she was affected by drugs. They assisted the man in taking her into the unit. They placed the woman on a mattress in the lounge room. However the recollection of these witnesses as to when this occurred was very unclear. Mr Stokes stated that it occurred "just after dark". Mr Parlak said that it occurred around 9:00pm, but added that it was just after he finished watching a particular television program. The evidence demonstrated that the program finished at 7:00pm. There was evidence that both witnesses had been smoking marijuana for most of the day.

1. The resident of the unit below Mr Bryce's said that some time after 7:30pm she heard furniture being moved and a "drilling noise" coming from his unit. She did not, however, hear an argument.

1. As noted, at about 9:15pm the police arrived at the unit.

Mr Bryce's ERISP

1. After Ms Barton was conveyed to hospital, Mr Bryce was arrested for the alleged assault on the morning of 15 May 2012. He was taken to Mascot police station some time after 10:00pm. He was released shortly afterwards without being interviewed. After the police learnt of the progress of Ms Barton's condition they returned to Mr Bryce's unit at around 4:20am on 16 May 2012. Mr Bryce was not there. They were advised that he had attempted to visit Ms Barton at St Vincent's Hospital. They arrested him at the hospital at 8:10am on 16 May 2012.

1. Later that afternoon Mr Bryce participated in an electronically recorded interview with a suspected person ("ERISP"). The ERISP occupied a number of hours. At times Mr Bryce's responses were rambling. He had difficulty in providing a coherent narrative. Nevertheless, he denied assaulting Ms Barton at any time. He described Ms Barton as violent towards him and prone to self harm. At times he expressed animus towards her, but only in the context of the difficulties she had caused him through her allegedly violent behaviour and false accusations. About half way through the interview Mr Bryce stated that he had entered the unit around 5:30pm and fallen asleep. He said he was waking up as Ms Barton came into the unit around 6:30pm (A422 to 427). He said that they spoke briefly and had sex before falling back to sleep. He said he slept until the police arrived (A 527).

1. Three points should be noted about the balance of the ERISP. First, after this point in the ERISP Mr Bryce's description of the conversation after Ms Barton returned is less benign. As he expanded upon the discussion, he mentioned that Ms Barton taunted him about having an AVO against him as he previously had against her. At one point he stated that Ms Barton said to him "Don't worry. I got the same as you, hey. That means I can come here but you can't hit me" (A622).

1. Second, the interviewing detectives raised with Mr Bryce the effect of the evidence of one of the two witnesses that I have noted above (at [25]). In response Mr Bryce admitted that after Ms Barton returned to the unit "[they] were actually going to go for a walk down the shop or something" (A865). He said Ms Barton appeared to be too tired and he put her back to sleep.

1. Third, although Mr Bryce complained about Ms Barton and said that she "drives me crazy" (A1024), he said he was still "in love with her" (A874).

Post mortem

1. As noted, the cause of Ms Barton's death was a subdural haematoma. A pathological examination of her brain only revealed that it had been caused within three days before her death. Otherwise, the post mortem examination of Ms Barton revealed a significant amount of external bruising on her body. However, a photograph was taken of Ms Barton when she attended Redfern police station around midday on 15 May 2012. It also showed external bruising. None of the witnesses suggested that any of the external bruising on Ms Barton's body post mortem was not depicted in that photograph. The post mortem also revealed an area of bruising under her skin just under or near her right ear and an area of bruising under the skin over the left orbital ridge. This bruising could have related to the incident which caused the subdural haematoma or another incident.

Issues at the trial and findings

1. The jury were instructed as to the elements of the crime of murder and manslaughter. Three matters should be noted about the instructions to the jury.

1. First, the instructions to the jury did not refer to provocation and reflected the fact that no question of self defence or other lawful justification for Mr Bryce inflicting harm upon Ms Barton arose in the trial. At all stages Mr Bryce denied assaulting Ms Barton. It follows that the jury's verdict reflects a finding that Mr Bryce committed manslaughter by an unlawful and dangerous act. In this context, dangerous means that a reasonable person in the position of Mr Bryce would have realised that, by his act, Ms Barton was exposed to an appreciable risk of serious injury.

1. Second, the jury were specifically instructed that, unless they were satisfied beyond reasonable doubt that Ms Barton died as a result of an injury inflicted at or after 5:00pm on 15 May 2012 (i.e. after her return to the unit), then Mr Bryce had to be acquitted of murder and manslaughter.

1. This direction reflected the manner in which the Crown ultimately put its case. A significant part of the trial was concerned with whether the subdural haematoma must have been inflicted after Ms Barton returned to Mr Bryce's unit. To that end, there was competing medical evidence as to the likely progression of the symptoms of her subdural haematoma. The Crown pointed to the various observations of Ms Barton's lucidity that were made throughout 15 May 2012 as negating the suggestion that she was already fatally injured by the time she returned to the unit at around 5:00pm. The defence pointed to uncertainties in that evidence, as well as to the tendency evidence I have noted above, as raising a reasonable possibility that Ms Barton could have sustained her fatal injuries prior to her return to the unit.

1. It follows from their verdict that the jury were satisfied beyond reasonable doubt that Ms Barton died as a result of an injury occasioned after her return to the unit on 15 May 2012.

1. Third, the jury were instructed that, although it was necessary for the Crown to prove beyond reasonable doubt that it was the voluntary act or acts of Mr Bryce that inflicted the injury that caused Ms Barton's death, the Crown did not have to identify the precise act that caused her death (R v PL [2009] NSWCCA 256; 199 A Crim R 199 at [46] to [49] per Spigelman CJ).

1. In this case there was no direct evidence as to precisely how Ms Barton suffered a subdural haematoma. The post mortem had only revealed internal bruising that might have been associated with the infliction of the subdural haematoma. There were no obvious signs of a scuffle and struggle in the unit. There was no witness who described overhearing a violent confrontation. The post mortem examiner, Dr Johan Duflou, accepted that the type of force that could cause a concussion type injury could have inflicted the subdural haematoma suffered by Ms Barton. Dr Duflou accepted that "as a minimum, a fall to the ground [could] do it and a punch, as an example [could] do it". Dr Parkinson's evidence was to similar effect, although he stated that "usually a subdural haematoma would require a reasonably significant force to cause it". He agreed that a "fall against the wall or something like that" could have caused it.

1. The end result is that, other than the facts necessarily found by the jury, there is much uncertainty associated with ascertaining the basis upon which Mr Bryce is to be sentenced. In R v Olbrich [1999] HCA 54; 199 CLR 270 ("Olbrich") at [27] Gleeson CJ, Gaudron, Hayne and Callinan JJ confirmed that a sentencing judge may not take into account facts adverse to an offender unless they are established beyond reasonable doubt, and may take into account facts favourable to an offender if they are proved on the balance of probabilities.

1. In this case Mr Bryce is to be sentenced on the basis that some time after 5:00pm on 15 May 2012 he engaged in some voluntary act that inflicted a subdural haematoma upon Ms Barton which caused her death. The nature of his act was such that it was both unlawful and of a kind that a reasonable person in his position would have realised that by that act Ms Barton was exposed to an appreciable risk of serious injury. Beyond this, and consistent with Olbrich, I cannot make any finding as to the nature of the act. Further, I do not find that at the time he committed the act Mr Bryce realised that his act was dangerous in the requisite sense.

1. Three further factual matters should be noted at this point. First the Crown submitted that Mr Bryce's failure to seek medical assistance for Ms Barton, and his attempt to deflect the police from assisting her when they arrived at the unit on the evening of 15 May 2012, were aggravating circumstances of the offence.

1. I have already referred to the evidence of Mr Parlak and Mr Stokes as to Ms Barton's condition when they observed her in the corridor that evening. It is clear that by this time she was suffering from her subdural haematoma. Understandably Mr Stokes and Mr Parlak thought she was affected by drugs and alcohol. However, I am satisfied beyond reasonable doubt that Mr Bryce knew at that time that she was affected by her head injury. The evidence of other witnesses in the trial who observed her in the afternoon did not suggest that she was visibly affected by drugs and alcohol. A blood test taken from Ms Barton after her admission revealed the presence of methadone and cannabis. A pharmacologist, Dr Judith Perl, testified that Ms Barton's level of impairment during the afternoon of 15 May 2012 due to cannabis was "not likely to have been high, if at all".

1. In these circumstances I am also satisfied beyond reasonable doubt that Mr Bryce knew that Ms Barton needed medical attention. He knew her to be outspoken and tough and that only a reasonably serious injury would have had that effect on her. I am, however, not satisfied beyond reasonable doubt that he knew or believed her injuries to be life threatening. I accept that Mr Bryce cared for Ms Barton. He would not have left her to die.

1. In Dulihanty v R [2013] NSWCCA 275 at [68] Johnson J (with whom Hoeben CJ at CL and Latham J agreed) held that the immediate departure of the offender in that case from the premises where the "clearly injured victim [was] alone with no apparent means of assistance, [could] properly be regarded as a circumstance of aggravation of the offence". Those observations apply here.

1. Second, the Crown urged the Court to find that the motive for Mr Bryce's actions was Ms Barton telling him that she had obtained an AVO (as revealed in his ERISP). I am not satisfied beyond reasonable doubt of that matter. While, in the ERISP Mr Bryce referred to Ms Barton making comments to that effect while they were having sex, there is nothing in the ERISP or any other part of the evidence that points to a connection between the imparting of that information and Mr Bryce attacking Ms Barton.

1. Third, for the sake of completeness I am also not satisfied beyond reasonable doubt that Mr Bryce assaulted Ms Barton on the morning of 15 May 2012. Ms Barton claimed that she was assaulted with a toilet brush, yet none was found. Ms Barton also claimed that she was on the telephone to her father when the attack occurred, yet that was clearly not the case.

Victim Impact

1. Victim impact statements from Ms Barton's father, mother and brother were read to the Court. In addition, a report from a clinical psychologist concerning Ms Barton's parents was provided to the Court by consent.

1. In his statement Ms Barton's father, Peter Barton, recounts that he was due to meet his daughter at a shopping mall on the afternoon of 15 May 2012, but she never made it. Instead the next day he found himself at the hospital next to his daughter's bed. Over the course of that day he and his wife had to consider whether to give permission for the withdrawal of life support. He explains that that "took it all out of us and life has never been the same since". Mr Barton has been consumed by his daughter's death. He has lost interest in the activities of life. He acknowledged his daughter was not perfect. He still sits in the mall where they were supposed to meet on the day she died. In his own words he is "heartbroken".

1. In her statement, Tanya Barton describes the agonising decision to turn off life support at the hospital, and the terrible effect of that decision and the death of their daughter upon her husband. She is also very concerned about the effect of her daughter's death on her son.

1. The psychologist's reports describe the difficulties that Mr and Mrs Barton have had in dealing with their grief, especially the decision to terminate their daughter's life support. It is also clear that they both found the trial difficult.

1. In his statement, Ms Barton's brother Geoffrey Barton referred to her children and grandchildren that she will now never see. He is deeply upset and angry at the treatment of his sister by Mr Bryce, a person whom he considers was supposed to have looked after her. Geoffrey Barton stated that when he thinks of his sister he cries "and just nothing makes me happy".

1. The significance of victim impact statements was discussed in MAH v R [2006] NSWCCA 226 (at [61] to [63] per Grove J, Hidden and Kirby JJ agreeing). I am not to treat them as evidence upon which I can act or material which operates in aggravation of the offence or is otherwise adverse to the offender.

1. However the Court acknowledges that the grief of Ms Barton's family resulted from her death at the hands of Mr Bryce.

Offender's personal history

1. Tendered at the sentence hearing was a report concerning Mr Bryce prepared by a psychologist, Mark Milic. Mr Milic's report sets out Mr Bryce's personal background and circumstances. I accept that description.

1. Mr Bryce is now forty three years of age. He was raised in a coastal town in Victoria. He was the youngest of three children. He told Mr Milic that his mother had "severe alcohol problems" and he suspected she had "mental health issues because she had been beaten by his biological father". He described his father as violent and as having had a "severe gambling problem".

1. Mr Bryce described having behavioural problems at school and being expelled at the age of fourteen. He said that he was illiterate then and still has poor literacy. He undertook some manual labour after he left school, but after that he "has only worked in gaols".

1. Mr Bryce told Mr Milic that he started using methylamphetamine when he worked on a fishing boat after leaving school. He also consumed marijuana and alcohol. He told Mr Milic that he became a heroin addict in his mid-twenties, but overcame his addiction while on a methadone program from 2000 to 2002. He told Mr Milic that he had remained drug and alcohol free since then apart from "low levels of marijuana use".

1. Mr Bryce told Mr Milic that he met Ms Barton in 2012. He said she stayed at his home regularly and "was frequently mentally disorganised and aggressive due to intoxication with crystal methlyamphetamines and other substances". This is consistent with what he told the police in his ERISP and the evidence that was led on his behalf at the trial (see [9]).

1. Mr Milic assessed Mr Bryce as having average intelligence. He describes him as being disillusioned that, despite his efforts to rehabilitate himself, he is in gaol again.

1. Mr Bryce appears bereft of support. He told Mr Milic that his mother was hit by a car and was being cared for by his sister. Apparently his brother has had long standing mental health problems. Other than his legal advisers, no one attended at his trial to support him.

Prior offences and prospects of reoffending

1. Mr Bryce was convicted in Victoria of possessing cannabis when he was fourteen. From that time until 1996 he acquired a string of convictions in Victoria for drug and dishonesty offences. He was convicted of assault, but the penalties imposed suggests that the offences were not serious. He does not appear to have served any period in custody in Victoria.

1. Mr Bryce's first conviction in New South Wales was for a charge of goods in custody committed in 1997. He acquired convictions for shoplifting and the like throughout 1998 and 1999. On 1 March 2000 he was convicted of break and enter with intention to commit a felony. He received a minimum term of six months imprisonment. This was reduced on appeal to a recognisance under former s 558 of the Crimes Act 1900. However in February 2001 he was convicted of receiving stolen goods and sentenced to two years imprisonment with a non-parole period of eight months. His conviction also represented a breach of the recognisance. In November 2003 he was convicted of possessing housebreaking implements, and received a sentence of three years imprisonment with a non-parole period of 21 months.

1. With one significant exception, the balance of Mr Bryce's criminal record in this State consists of various dishonesty offences. On 13 January 2011 he was sentenced to twelve months imprisonment with a non-parole period of five months for breaking and entering a dwelling. His most recent period in custody expired on 16 March 2012 when he completed a sentence of three months imprisonment for stealing property from a dwelling. Overall he has spent the better part of this century in custody.

1. The one exception concerns a conviction for assault occasioning actual bodily harm that was committed in 2007. For that offence Mr Bryce was sentenced to two years imprisonment with a non-parole period of eighteen months. The Crown tendered the statement of facts concerning that offence. The victim was in a relationship with Mr Bryce, although she was living in a refuge because she was seeking protection from someone else. She spoke to Mr Bryce outside the refuge. She asked him to stay away. Mr Bryce grabbed her and "flung her over his shoulder". He put her in a vehicle and drove off. The relevant part of the statement of facts then states as follows:

"The accused has then pulled the victim from the car by the arm and threw her into the bushes telling her it was a cliff face. The victim at this time was terrified as the accused told her that he took her there to kill her. He stated that he would get a knife, which was in the vehicle and stab her (the victim was aware of a knife in the vehicle). He then threw the victim down on some rocks, causing her to hurt her neck and again threatened to kill her. He stated that he would have to kill her as she had ruined everything by talking to the police.

At this time the victim was on her hands and knees and the accused was kicking her. The accused kicked her so hard that she defecated in her pants, twice. The accused then allowed her to change her pants, but once again began kicking her, which again cause[d] her to defecate in her second pair of pants.

Whilst driving to the location the accused began punching the victim in the side of the head and was yelling at her as he believed that she was seeing someone else whilst he was in prison."

The balance of the statements of facts recounts how Mr Bryce continued to verbally abuse the victim while he drove her back to the refuge.

1. Needless to say, the level of violence that Mr Bryce displayed towards a female with whom he was in a relationship when he committed this offence resonates with this matter. It points to a need for specific deterrence.

1. Mr Bryce's history of offending does not serve to aggravate the offence for which he has been convicted, or otherwise warrant an increase in his sentence. However, it does operate to deny him any leniency that might otherwise be afforded on account of prior good character. Most significantly, it informs the Court's assessment of his prospects of reoffending. One factor in Mr Bryce's favour on that topic is that he has achieved some success in overcoming his dependency on drugs and alcohol, which appears to have been a feature of his offending behaviour until around 2000. However his offending has continued. Most worryingly, he has been twice convicted of offences involving serious violence upon women. As I have noted, he has no family support. Overall I assess Mr Bryce's prospects of reoffending, including his prospects of committing an offence of violence, as moderate to high.

Aggravating and mitigating factors

1. Section 21A(2) of the Sentencing Act lists a series of aggravating factors the Court is to take into account in determining the appropriate sentence. These factors cannot be considered as aggravating the offence if they are elements of the offence. Section 21A(3) also lists a series of mitigating factors, but none were said to be relevant.

1. In relation to aggravating factors, I have already addressed the finding sought by the Crown concerning Mr Bryce's failure to obtain medical assistance for Ms Barton. Two further aggravating factors should be noted.

1. First, this offence was committed in "the home of a victim or any other person" (s 21A(2)(eb)). Arguably the unit was Ms Barton's home and it certainly was Mr Bryce's home. That said, I attribute little weight to this factor in this case.

1. Second, the offence was committed while Mr Bryce was "on conditional liberty" (s 21A(2)(j)). On 5 March 2012 he received a bond under s 9 of the Sentencing Act for committing larceny. The bond was of two years duration.

Special circumstances

1. For the sake of completeness, I note that nothing in the material warranted the making of any finding of special circumstances for the purposes of s 44(2) of the Sentencing Act.

Conclusion and sentence

1. Of all crimes, manslaughter is said to "thro[w] up the greatest variety of circumstances affecting culpability" (R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep) ("Blacklidge"). Even within the categories of manslaughter, such as unlawful and dangerous act or excessive self defence, the range of circumstances is "notoriously wide" and an offence in one category is not necessarily better or worse than one in another (Berrier v R [2009] NSWCCA 40 at [25]). Further, attempts to categorise sentences by reference to a "single common component relating to the mechanism of death", or the use of a particular form of weapon such as a knife, face the difficulty that there is no range of sentences for such offences (R v Loveridge [2014] NSWCCA 120 at [226]).

1. These statements of principle are apposite to this case. As the above discussion makes clear, little is known about the circumstances in which Ms Barton suffered her fatal injury. This offence cannot even be categorised as fitting within some well understood pattern of domestic homicides. I have not been satisfied that Mr Bryce assaulted Ms Barton on the morning of 15 May 2012. Their relationship was marked by mutual violence, but it was defined by their mutual dysfunction.

1. Despite this uncertainty, the starting point is that manslaughter involves the unlawful taking of a human life. Ms Barton's difficult personal circumstances do not mean that she was any less deserving of the protection of the law than any other citizen. She did not bring her own death upon herself. Mr Bryce's voluntary, unlawful and dangerous act killed her. However, I have not found that he knew his actions were dangerous in the relevant sense, but I have found that his actions were aggravated by his failure to seek medical assistance for Ms Barton. Further, while not much more is known about this offence, a lot more is known about this offender. That knowledge disentitles him to leniency.

1. As noted, the crime of manslaughter covers a multitude of circumstances. The sentence imposed must respect the sanctity of human life. However all the other factors in sentencing are engaged in this case. These include general and specific deterrence, the need for denunciation and for the punishment to properly reflect Mr Bryce's moral culpability.

1. In this case, I have assessed the appropriate sentence as imprisonment for a period of eight years constituted by a non-parole period of six years and a balance of term of two years. As the offender was taken into custody on 16 May 2012, it follows that his custodial sentence should commence from that date.

1. Mr Bryce, the offence of manslaughter is a "serious and violent offence", as defined in s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW). I am obliged by s 25C of that Act to advise you of the existence of that legislation and of its application to the offence you have committed.

1. John Keith Bryce, for the manslaughter of Catherine Barton I note that you have already been convicted. You are now sentenced to a term of imprisonment. Pursuant to s 44(1) and s 44(2) of the Sentencing Act, I set a non-parole period of six years commencing on 16 May 2012, and an additional term of two years commencing 16 May 2018 and ending on 15 May 2020.

1. The sentence will be taken to have commenced on 16 May 2012. The offender will be eligible for release on parole on 16 May 2018 and the sentence will expire on 15 May 2020.

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Decision last updated: 29 August 2014