R v Cardoso

[2001] NSWSC 775

CITATION:	R v CARDOSO [2001] NSWSC 775
FILE NUMBER(S):	SC 70078/00
HEARING DATE(S):	5 July 2001
JUDGMENT DATE:	7 September 2001
PARTIES :	Regina Calisto CARDOSO
JUDGMENT OF:	Hulme J at 1

COUNSEL :	Crown: Mr D Howard Prisoner: Mr P Boulton
SOLICITORS:	Crown: SE O'Connor Prisoner: Legal Aid Commission NSW
DECISION:	See paragraph 33

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

70078/00

HULME J

REGINA v CALISTO CARDOSO

REMARKS ON SENTENCE

1 On 12 June last, an indictment was preferred against Calisto Cardoso alleging that on 25 December 1999 he murdered Abilio Nunes. On 29 June the jury returned a verdict of not guilty of murder but guilty of manslaughter. Under s24 of the Crimes Act, the maximum penalty for manslaughter is 25 years. (The maximum penalty for murder is life imprisonment.) It falls now to me to sentence the Prisoner and, in doing so to make any findings of fact necessary in that connection. My findings must be consistent with the verdict of the jury and to the extent to which they are adverse to the Prisoner and not in mitigation, made on the criminal standard of proof.

2 25th December was the date Mr Nunes died. The causes of death were the consequences of a stab wound to his head which occurred on 16 December and which was inflicted by the Prisoner. The events which led to the stabbing were as follows. A few days prior to 16 December 1999 there had been a soccer match arranged between East Timorese refugees at the East Hills Safe Haven and some other East Timorese resident in Australia. A fight had occurred there and the nephew of the deceased was apparently injured. On 16 December the Prisoner, who had not been at the soccer match, was one of a group of refugees from the Safe Haven who went shopping in Liverpool. In the Macquarie Mall the deceased, who was apparently upset at what had occurred to his nephew, accosted some of the group. He said in English something to the effect "You dogs. Why you hitting little kids for." He was angry and his manner was aggressive. I am satisfied that the deceased also said something in Tetum, an East Timorese dialect, understood by the Prisoner. The deceased was prevailed upon by a friend he was with, Mr Bergvall Williams, and an older person to walk away.

3 A little time later, he and Mr Bergvall Williams, returned to the area of the confrontation. What transpired between then and the stabbing was the subject of evidence from numerous witnesses. There was a deal of disagreement between them. Some of this will have been due to the dramatic nature of what occurred, some because witnesses looked away or their vision became obstructed during the course of events and some for other reasons. Undoubtedly some of the witnesses were more impressive than others. I am satisfied of the following.

4 Some of the refugees had previously returned to the area of the earlier confrontation. I am satisfied that in the case of the deceased and Mr Bergvall-Williams their revisiting the area was not with a view to trouble and I think the same can be said of the refugees. Be that as it may, the deceased and Mr Bergvall-Williams came to be walking towards them. The deceased seems still or again to have been angry. He stared at the refugees and made remarks under his breath to the effect that the refugees were "dogs". As the deceased and Mr Bergvall-Williams came close to the refugees, the two turned away and walked past. The refugees, or about 6 of them, followed. After a short distance, about 5 or 6 steps, the deceased stopped and turned around and he and the group of about 6 confronted one another. A fist fight started. I do not think it matters who threw the first punch. I am not prepared to find it was the Prisoner but once the deceased and Mr Williams were being pursued by a group of others, their situation was invidious. Both the deceased and at least some of the refugees were equally willing, if not eager, to fight.

5 Mr Bergvall-Williams said that prior to the fight starting he saw and remarked on the fact that one of the refugees had a knife and on one view of his evidence this led to him and the deceased moving and being pursued by the 6 or so refugees about twice the distance I have indicated above. Again, I do not think this matters.

6 The fight went on for a little time. It was about 6 against one though I am satisfied that it was commonly one or two and perhaps three against one at any moment of time. The refugees seem to have fought in turn or in waves and not in an all in assault. The deceased seems to have held his own, more than one witness saying that he was winning the fight. I am satisfied that during its course he ran away at times. Whether this was with a view to the fight stopping or merely on tactical grounds I am unable to say. I am however satisfied that while the deceased was willing to fight, the refugees were more the aggressor in it. I reject evidence to the effect he chased the refugees onto a grass area where the fight concluded.

7 While the fight continued on the grass area, the Prisoner removed himself a little from it, acquired possession of a knife from one of the other refugees and returned to the fight with it. There he attacked the deceased. The Prisoner made at least 2 swings with the knife using an overarm action commencing with the knife in a fist held near the Prisoner's ear, his forearm being vertical or nearly so and the knife blade protruding from near the Prisoner's little finger. The deceased blocked at least one blow but the last penetrated his skull, damaging blood vessels on the covering of the brain. The knife itself is a common table knife with a rounded end and in the opinion of Dr Skirving which I accept, a great deal of force would have been required to effect the injury that occurred.

8 There is no reason to think that the Prisoner's use of the knife was premeditated for more than a minute or so. However, within that short time it was a deliberate decision to arm himself with the knife and use it. In evidence he contended that he had held the knife to scare the deceased and used it in self defence. The jury, properly in my view, rejected the latter proposition and I reject the former. I am prepared to accept that the Prisoner's use of the knife was, as is suggested in his ERISP, "in the heat" (of the fight).

9 The deceased fell and the East Timorese refugees ran off. They were pursued and whether accidentally or not, finished up in the local police station. Later that day the Prisoner participated in an electronically recorded interview. Although blaming the deceased and, possibly, Mr Williams for insulting words and starting the fight, he acknowledged he had done the stabbing.

10 One question I have to decide is the basis upon which the Prisoner should be sentenced. In the context of the trial there are 3 possible bases for the finding of manslaughter - provocation, substantial impairment by abnormality of mind, and an unlawful and dangerous act.

11 In respect of the second of these, evidence was given by 2 psychiatrists and one psychologist. I have no hesitation in accepting the evidence of Dr Brown that the Prisoner was not suffering from any abnormality of mind at the time of the offence. Furthermore if it came down to a choice between Dr Westmore and Ms Macdonald, the psychologist, I prefer the evidence of Dr Westmore that, on the information available, it is not possible to conclude that there was an abnormality of mind.

12 There can be no doubt that the Prisoner's act was both unlawful and dangerous. I am not satisfied that the Prisoner had any intention to kill. I am however satisfied that the Prisoner had an intention to do (at least) grievous bodily harm. His deliberate acquisition of the knife and its manner of use points strongly in that direction and his evidence of violence in East Timor, including the carrying of machetes for protection and of seeing one of his friends stabbed, tends to strengthen the inference to this effect. I acknowledge that in his ERISP the Prisoner said that he "just wanted to wound him, to injure, do him some injury" but neither that answer nor anything else in the ERISP or the Prisoner's evidence persuades me that that was the limit of the damage the Prisoner intended. I was impressed by neither the reliability or credibility of the Prisoner's evidence as to the events in or surrounding the fight.

13 Of course, given the verdict, I cannot find an intention to do grievous bodily harm without also finding that the Crown had not excluded provocation as contemplated by s23 of the Crimes Act. But for the significance of the Prisoner's East Timorese background, I would think the Crown had. For in my view the deceased had done nothing that could have induced an ordinary person without that sort of background to form an intent to kill or inflict grievous bodily harm or to so lose control as to have formed either of those intentions. However, the Prisoner's background is clearly calculated to make him far more sensitive than most people to, and to exacerbate the magnitude of, conduct capable of being provocative. In the result, concerns I have on the issue of provocation are not such as to preclude me from finding an intent to do grievous bodily harm.

14 That said, in the circumstances of this case, I am by no means persuaded that regarding the case as one where what would otherwise be murder has been reduced to manslaughter rather than as one of manslaughter by an unlawful and dangerous act makes any significant difference to the appropriate punishment. - c.f. R v Isaacs (1997) 41 NSWLR374 at 381. While Mr Boulton's preferred position was that I should find merely an unlawful and dangerous act, he himself submitted that if there is evidence of loss of self-control, then the outcome would be similar whether or not there was an intention to cause grievous bodily harm.

15 It was also submitted that even if I were not prepared to find that the Prisoner suffered from an abnormality of mind, I should nevertheless regard him as impaired by psychological problems. Whether that is the correct description I need not pause to consider. I certainly accept that his history probably led him to act or react more readily and at a more extreme level than someone, including himself, who had not experienced that history. However the Prisoner was with friends (or at least East Timorese acquaintances). The deceased was not the aggressor and I do not accept that the Prisoner was in fear.

16 I turn to the Prisoner's subjective circumstances. He was born on 3 September 1977. He lived up in the mountains and both parents worked in a cornfield. When the Prisoner was 13 he saw his father captured by Indonesian troops and taken away to prison. He did not see his father again and heard he had been killed. His father had, apparently been supplying food to the Fretilin forces. Not surprisingly, the Prisoner missed his father. The Prisoner then left school to help support the family.

17 The Prisoner said that since he was 13 he was scared of the Indonesian troops. They were everywhere and "We were always at gunpoint."

18 When aged 19 or 20, the Prisoner went to live in Dili, looking for work. Eventually he found some, returning to his family at times to give them money he had earned. He was in Dili prior to the referendum and experienced threats from the militia in the event the referendum result favoured independence. Two of the people he lived with were arrested and beaten and the Prisoner took food to them in the police station. He himself was beaten but sent home. He was scared.

19 After the referendum there were always gunshots. The Prisoner was frightened to go out but after some time went to the UNAMET compound. He didn't trust anyone. Outside there were gunshots and burning houses. After 2 or 3 weeks he and others in the compound were evacuated to Australia, initially to Darwin and then Melbourne. He arrived in Australia in about September 1999.

20 He was coughing blood, told his sickness - which may well have been tuberculosis - would take some time (to heal) and sent to Sydney. He said that he was more scared than in East Timor because he wanted to be cured and sent home. He has had recurrent dreams about the militias and his friend being stabbed.

21 As I have indicated the Prisoner admitted the stabbing on the afternoon it occurred. He gave evidence in the trial to similar effect. Called during the proceedings on sentence the Prisoner said that he had thought a lot about Mr Nunes' death, he felt very sad and apologised for what had happened. A letter from a prison chaplain recorded that the Prisoner "has been very faithful to worship which is held in the prison chapel each Sunday morning. The present circumstances in Mr Calisto's life have moved him back to a deeper reflection on the basic issues of life. I believe that Calisto's commitment is sincere." The letter went on to refer to the Prisoner's weak grasp of the English language.

22 I see no reason not to accept the evidence referred to in the immediately preceding paragraph and the Prisoner's remorse will be reflected in the sentence. The Prisoner has no prior convictions.

23 It should be noted also that during the week before the trial commenced and during it the Prisoner offered to plead guilty to manslaughter on the basis of provocation, I infer in full satisfaction of the indictment, but the offer was rejected by the Crown. Such a plea was not entered in front of the jury and in fact the issue of self-defence was raised. In these circumstances, it does not seem to me that the Prisoner is entitled to any discount on account of any utilitarian value. There was none. I do not regard Thompson and Houlten (2000) 115 A Crim R 104 as requiring any different conclusion.

24 It should be recorded also that the Applicant has limited familiarity with the English language and that will make time in prison harder for him than otherwise, as will the fact that he is away from family and friends. This is not a case where, putting aside the migration laws, the Prisoner has come to Australia to offend and both of the matters mentioned argue for some consideration in sentencing. It is, of course, his first time in custody and, in totality, these matters justify a finding of special circumstances. In accordance with authority, I ignore the fact that at the conclusion of his incarceration, the Prisoner is likely to be deported. A letter from the Australian Red Cross tendered on the question of sentence shows that since being in custody, the Prisoner's mother and grandmother have died, an event he heard of by letter at a time when he had no emotional support. Other family members have also since died.

25 There were tendered victim impact statements prepared by the father of the victim with the assistance of his daughter and by a brother of the deceased. It is apparent that his death has had a substantial effect on the family. The use to which I can put those statements is dictated by the decision in R v Previtera (1997) 94 A Crim R 76 but the significance I must afford to Mr Nunes' death is the subject of other authorities to which I refer.

26 Many of the factors relevant to sentencing in a case such as this were adverted to by Hunt CJ at CL in Alexander (1994) 78 A Crim R 141. Particularly because both victim and offender and their families are foreign or of foreign extraction, it may be appropriate to repeat them:-

"The sentence to be imposed for any crime must take into account the many different purposes which that sentence is expected to serve - the protection of society, personal and public deterrence, retribution and reform. But, as the High Court in Veen (No. 2) went on to point out:
"The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions."
In the present case, I am satisfied that there could be no concern for the protection of society, and no need for personal deterrence or reform, so far as this prisoner is concerned. I am satisfied that he is never likely to react in this way again.
It is nevertheless always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without such an assessment the other factors requiring consideration before arriving at the proper sentence to be imposed cannot properly be given their place. Except in well defined circumstances such as the youth or the mental incapacity of the offender, public deterrence is generally regarded as the main purpose of punishment, and the subjective considerations relating to the particular prisoner (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed. Retribution, or the taking of vengeance for the injury which was done by the prisoner, is also an important aspect of sentencing. Not only must the community be satisfied that the offender is given his just desserts, it is important as well that the victim, or those who are left behind, also feel that justice has been done.
The tensions involved in the imposition of the appropriate sentence in a provocation case - where necessarily there has been at the same time both a loss of self control and an intention to kill or to inflict grievous bodily harm - were discussed by the former Chief Justice, Sir Laurence Street, when speaking for the Court of Criminal Appeal in 1981, in a passage which bears quotation in full:-
"The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act 1900 (NSW) and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contents which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party.
In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life."

also indicates that attention should be directed to:-

" (i) the degree of provocation offered (or, alternatively, the extent of the loss of self-control suffered), which when great has the tendency of reducing the objective gravity of the offence;

(ii) the time between the provocation (whether isolated or cumulative in its effect) and the loss of self control, which, when short also has the tendency of reducing the objective gravity of the offence; and

(iii) the degree of violence or aggression displayed by the prisoner, which when excessive has the tendency of increasing the objective gravity of the offence."

28 At its highest, and even making allowance for the Prisoner's situation, it is impossible to describe the degree of provocation here as higher than moderate. And, given the scale, i.e. one which necessarily involves an intent to do at least grievous bodily harm, the same can be said of the extent of the loss of self-control. That loss was reasonably immediate. Given again the scale, I would characterise the degree of violence as high.

29 In this case the purposes of protection of society, personal deterrence and reform have some part to play. Whatever may have been the situation in East Timor prior to the Prisoner's arrival in Australia, in any civilised society the use of weapons except in self-defence is wholly unacceptable. Nevertheless, it must be recognised that his history suggests that lack of control and violence has not, in the past, been a problem for him.

30 It is considerations of general deterrence and retribution that dominate the sentencing exercise here. A human life has been lost because the Prisoner chose to attack someone with a knife in circumstances which, while reducing his offence to manslaughter, were otherwise wholly unjustified. Such crimes are far too frequent.

31 The maximum penalty is, as I have said, 25 years imprisonment. That maximum "is intended for cases falling within the worst category of cases for which the penalty is prescribed: Ibbs v R (1987) 163 CLR 447 - Veen v R (No. 2) (1988) 164 CLR 465 at 478. Statistics kept by the Judicial Commission show that the mean of full and minimum terms of sentences imposed for manslaughter where the offender has no prior record and has pleaded not guilty are 7 and 4 years respectively. It must be recognised that, because of the wide variety of factual circumstances in which manslaughter occurs, the statistics are of limited assistance. For the purposes of this case and another which is before me also today, I have read a large number of other judge's decisions, some of which are summarised in a schedule to these Reasons.

32 I acknowledge that a number of those cases argue for a lower penalty than I intend to impose although R v Dally [2000] NSWCCA 162 and perhaps R v Sherry [2000] NSWCCA 35 are in line with my views. Be that as it may, as was said in another context, "In determining the proper penalty ... the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent's conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug" - R v Peel (1971) 1 NSWLR 247 at 262. The central feature of all cases of manslaughter is the taking of another's life and while making all allowance for the features of this case favouring leniency, the deliberate taking of a knife into a fight with a view to attacking someone with it in my view places an offence of manslaughter which results well up the bottom half of the scale of manslaughter offences. Despite all that has been said about the seriousness of such offences, there is no obvious decline in their frequency. In my view general deterrence and retribution require the sentence I intend to impose. Otherwise the "just desserts" and the importance of those left behind the victim feeling that justice has been done, of which Hunt CJ at CL spoke in Alexander will not have been satisfied.

33 The conclusion at which I have arrived is as follows. I am satisfied, as s5(1) of the Crimes (Sentencing Procedure) Act contemplates, that the circumstances are such that no penalty other than imprisonment is appropriate. I am further satisfied that that imprisonment should be full time. Calisto Cardoso, for the manslaughter of Abilio Nunes, I impose a total sentence of 8 years, including a non-parole period of 5 years, both periods to date from 16 December 1999.

SCHEDULE

R v Calisto CARDOSO

NOTE: Unless otherwise indicated, all of the cases referred to are ones where manslaughter on the basis of provocation was the offence being dealt with.

R v Alexander (1995) 78 A Crim R 141

In this matter the sentence imposed was one of 6 years including a minimum term of 2½ years. Hunt J recorded that "after almost 10 years of the most extraordinary conduct by the deceased towards the 2 young children of the prisoner's first marriage ... and after a prolonged argument with the deceased in which she taunted the prisoner with threats to take the 3 children of the present marriage away from him, suggested that the only solution to the situation was to shoot her, and accused him of being gutless during their 10 years of marriage - the prisoner stormed out of the room, spent a very short period of time outside and then returned, picked up a rifle which had been left there ready to be discharged the previous evening by the deceased herself, aimed it at her and pulled the trigger." Hunt J had found the deceased's conduct amounted to "very extreme and grave provocation".

There were strong subjective features. Hunt J appended to his judgment a schedule of sentences in prior cases. In the case of those since the commencement of the Sentencing Act 1989, the median full term was 6 years.

A Crown appeal (unreported, CCA, 24 February 1995) was dismissed.

R v Azar 1991 56 A Crim R 414

In this matter the Court of Criminal Appeal dismissed an appeal against a sentence of an effective term of 6 ½ years including a minimum term of 5 years. There had been a brawl between a group of young persons including the Appellant and the deceased. At one stage during the fight, the deceased ran at the Appellant, punched him to the face and causing the Appellant to fall to the ground. The Appellant got up, went into a nearby house and obtained a kitchen knife, returned with the knife and rejoined the fight. The deceased was fatally stabbed with the knife.

The Appellant was a man of good character with no relevant criminal history and was unlikely to offend again. He was regarded as having genuine contrition.

Recourse to the remarks on sentence of Newman J made on 14 December 1990 reveal that the issue of manslaughter had been left to the jury upon the basis of both an unlawful and dangerous act and provocation and that in the course of sentencing, His Honour did not consider it necessary to make a specific finding as between the two possibilities.

R v Dally [2000] NSWCCA 162

In this matter the Court of Criminal Appeal dismissed an appeal against an effective sentence of imprisonment for minimum and additional terms of 6 and 2 years respectively. During the course of an altercation during which the deceased kept haranguing and abusing the Appellant and pushing and pulling him, the Appellant stabbed the deceased once with a large carving knife he had little earlier obtained from another room in the house. The trial judge had found that the Appellant had stabbed the deceased deliberately but had not been satisfied that there was any intention to kill. The deceased was taller and of much heavier build than the Appellant and the provocation included threats of physical violence.

The offender had a lonely and unhappy past, was not disposed to violence and had no significant record although he had an alcohol abuse disorder. He notified the authorities immediately he discovered the deceased's death and gave the police a full account of what had occurred. He felt a considerable degree of remorse and was unlikely to commit any similar offence again. He was 49.

R v Diamond [2000] NSWSC 1212

This offender was sentenced to imprisonment for 6 years including a non-parole period of 4 ½ years. While intoxicated, the offender had been teased by a group and had a T-shirt and cap which he valued taken from him, the first mentioned article being thrown into a tree. He walked away frustrated and humiliated but soon after became angry. He went to a friend's house, procured a steak knife, concealed it, and returned to the scene of the confrontation. He asked where his shirt and hat was and when the victim responded by dismissive or contemptuous words, the offender brought the knife out, raised his right hand above his shoulder and plunged it into the victim's left upper chest. Badgery-Parker AJ found that the offender intended to inflict grievous bodily harm but was not prepared to find that that intent had been formed until the time of the killing.

At the time of the offence, the offender was 22 years old. He had behavioural problems since he was younger than 8. As a child he had been diagnosed as having a severe personality disorder and exhibited aggression, anti-social and disruptive behaviour. At about 12 he was sent to Boys Town because no other school would accept him. His aggressive tendencies manifested themselves in a number of offences of violence for which he had previously been before the courts. Alcohol had a tendency to aggravate his aggressive tendency and there was a risk of violence in the future. The offender had generally been unemployed. He had undertaken self improvement programs in gaol, a matter regarded as giving some hope for rehabilitation.

R v Howard [1999] NSWSC 1228

In this matter the sentence imposed included minimum and additional terms of 5 years and 1 ½ years penal servitude. Over a period and for a variety of reasons, the offender had developed growing resentment towards the deceased. On the night of his death, the deceased forced his way into the Prisoner's residence, knocking him to the floor. The deceased threatened the Prisoner and said to another person present "Sit the fuck down or I'll kill you too." Things then calmed down but the Prisoner walked to the kitchen, picked up a carving knife, ran towards the deceased and stabbed him twice. The Prisoner immediately ran away in distress and exhibited almost immediate remorse. He was of good character and had a good employment history. He offered to plead guilty to manslaughter at an early stage and was regarded as having good prospects of rehabilitation. He was 31.

R v Gulam Mohammad Khan (1996) 86 A Crim R 552

In this case the Court of Criminal Appeal increased to 6 years including a minimum term of 4 years a sentence imposed by Hidden J. The offender discovered that the deceased whom he had taken into his home and with whom he had become friends was having an affair with the offender's wife. On the night in question the offender had surreptitiously returned home and waited to see whether anything transpired and an hour or so later, heard the deceased come home and intercourse occur. Appalling injuries were inflicted upon the deceased including some 59 knife wounds.

It was accepted that the deceased's conduct constituted grave provocation and that the offender was otherwise of excellent prior character, placid in temperament, a stranger to aggression and deeply remorseful. He was aged 45 years.

R v MHN (No 2) (unreported, Kirby J 20 November 1998)

In this case the sentence imposed was for a fixed term of 4 years, this being the minimum term which, apart from matters not presently relevant, the Judge would have imposed as part of a longer sentence.

The offender aged 17 years and 8 months at the time was been attacked by a number of youths, spoiling for a fight. One of those was the deceased who introduced a knife into the fight. The offender managed to take hold of the knife, removed it from its sheath and thereafter blindly and with a loss of self control thrust the knife towards his assailants killing one.

The offender had led an unhappy and deprived life spending his early years in an institution. He was sent to Australia to join his father when aged 12 and found adjustment difficult, particularly because he did not speak English. He ran away from home, living on the streets and with friends. He suffered from depression to the extent it was a psychiatric illness. He was charged with the offence following a confession he had volunteered.

R v Sherry [2000] NSWCCA 35

Holding that a sentence of 5 years and particularly a minimum term of 2½ years which had been imposed on the Respondent was manifestly inadequate, the Court of Criminal Appeal increased each of these periods by one year. Because it was a Crown appeal, the court imposed a lesser sentence than would otherwise have been appropriate.

The deceased and the Respondent had been in a volatile defacto relationship marked by violence and drunkenness. In the course of one altercation, the Respondent obtained a knife, returning to the vicinity of the deceased. The report is not completely clear what happened then but the knife entered her neck. The majority in the Court of Criminal Appeal proceeded on the basis that it had been very dangerous for the Respondent to bring the knife very close to the deceased.

R v Vandersee [2000] NSWSC 916

In this matter James J imposed a sentence consisting of imprisonment for 8 years including a non-parole period of 5 years on a woman who had killed her sleeping husband by striking him on the head a number of times with a small axe or tomahawk. His Honour found that the offender had an intention to kill. He also found that depression was a mitigating circumstance. The provocation was a long history of emotional and some physical abuse, culminating in cutting off of part of the offender's hair on the night of the offence. It was later in the evening that she saw the axe and decided to use it. She turned herself in at a police station next day.

R v Veech [2001] NSWSC 68

This offender had been charged with murder but found guilty of manslaughter. He was sentenced to imprisonment for an effective term of 6 ½ years with a non-parole period equivalent to three-quarters of that.

There had been arguments over some days between the victim and the offender who seem to have been business partners. On the day of his death, the deceased, while at the offender's premises, loaded some tools into his vehicle. There was a confrontation and the deceased walked towards the vehicle. Without reasonable grounds, the offender thought the deceased was going to acquire a weapon. The offender then loaded a rifle, went outside and fired two shots, one of which severed the deceased's spinal cord. He fell and the offender then fired two more rounds from close range, each shot causing major damage to the deceased's heart. Wood CJ at CL found the offender had an intent to kill, the provocation significant but not extreme, the time between the provocation and response was short, the Prisoner's actions unpremeditated although at least in part very deliberate and controlled and the degree of violence extreme.

The offender had no prior record of significance. His childhood had been somewhat disrupted but he had some employment history. He was not regarded as an ongoing danger.

R v Teklemariam Abebe [2000] VSC 567

This case was one where murder had been reduced to manslaughter by reason of provocation. The sentence imposed was imprisonment for 8 years including a non-parole period of 6 years. The maximum prescribed under the Crimes Act of Victoria, was imprisonment for 20 years.

There had been marriage difficulties between the offender and his wife leading to separation. A relationship between the victim and the offender's wife had been a major cause of these difficulties.

Co-habitation had resumed and the offender and his wife had established a restaurant. On the day of the offence, the offender arrived at the restaurant and found the victim sitting in the kitchen. In response to a question as to why the victim was there, the offender's wife described him as her boyfriend and asserted that she intended to live with him as man and wife. The victim looked at the offender "in an arrogant and condescending fashion" and the offender lost control, picked up a knife and stabbed the deceased three times in the chest. The offender was 50 years, Ethiopian, and likely to have been embarrassed by his community knowing of the prior situation of the three persons. The offence was regarded as out of character and the prospects of rehabilitation good. There was no prior record.

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Last Modified: 10/09/2001