R v Dusan Maric

[2009] NSWSC 346

CITATION:	R v Dusan MARIC [2009] NSWSC 346
HEARING DATE(S):	30 March 2009
JUDGMENT DATE :	1 May 2009
JUDGMENT OF:	Harrison J
DECISION:	Term of imprisonment consisting of a non-parole period of 5 years commencing on 2 November 2007 and expiring on 1 November 2012, with a balance of term of 2 years and 6 months commencing on 2 November 2012 and expiring on 1 May 2015. The earliest date of eligibility for parole is specified as 1 November 2012.
CATCHWORDS:	CRIMINAL LAW – manslaughter – Crimes Act 1900 s 23A - substantial impairment by abnormality of mind arising from an underlying condition – severe depression resulting in offender's morbid appraisal of circumstances and impairment in problem solving and capacity to consider alternative courses of action - impaired ability to control himself at the time of the alleged offence - plea of guilty - sentence – prior good character - no likelihood of reoffending and no suggestion of future dangerousness – evident contrition and remorse
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Sentence
CASES CITED:	R v Blacklidge (Court of Criminal Appeal, 12 December 1995, unreported) R v Bollen (1998) 99 A Crim R 510 R v Dawes [2004] NSWCCA 363 R v Engert (1995) 84 A Crim R 67 R v Low (1991) 57 A Crim R 8 R v Previtera (1997) 94 A Crim R 76 R v Privett [1999] NSWSC 1076 R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Trotter (1993) 35 NSWLR 428 R v Wright (1997) 93 A Crim R 48
PARTIES:	The Crown Dusan Maric (Offender)
FILE NUMBER(S):	SC SC 2008/12536
COUNSEL:	T W Thorpe (Crown) A M Webb (Offender)
SOLICITORS:	S Kavanagh, Solicitor for Public Prosecutions (Crown) S O'Connor, Solicitor for Legal Aid Commission of New South Wales (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

1 May 2009

2008/12536 R v Dusan MARIC

SENTENCE

1 HIS HONOUR: The offender was indicted for the murder of Zoran Vujinovic ("the deceased") at Round Corner, Dural on 2 November 2007. His plea of guilty to manslaughter entered on 19 March 2009 was accepted by the Crown in discharge of that indictment on the basis of medical evidence that established that his capacity to control himself was substantially impaired by an abnormality of mind arising from an underlying condition attracting the operation of s 23A of the Crimes Act 1900.

2 The offender and the deceased were both members of the Serbian community and had first met in about 1995 when the offender came to Australia. The deceased had come to Australia from Croatia with his mother on 9 February 1994. The offender attended Chester Hill High School and the deceased went to a school nearby. They subsequently lost contact until about two and a half years prior to the death of the deceased when their acquaintanceship was renewed. The deceased was concerned at that time in the cultivation of cannabis and the offender became involved in these activities through his association with the deceased. On 23 April 2007, upon the instructions of the deceased, the offender leased premises in Old Northern Road at Dural that were subsequently used for the hydroponic cultivation of that plant.

3 Both the offender and the deceased were involved in the cultivation of the plants. The deceased also told the offender that he had to sell tablets that were known as "Nexus", an hallucinogenic drug said to be well known at raves and dance parties. The offender was reluctant to sell these tablets and told the police that he borrowed money to give to the deceased to create the impression that the money was the proceeds of sales.

4 On the afternoon of 2 November 2007 the offender drove to the rented house at Dural. He did so approximately once every two days or so. The deceased lived close by in Old Northern Road, Glenorie and attended the premises every day. He arrived about one hour later. At about 9.00pm on the evening of that day the offender retrieved a shortened rifle from an upstairs bedroom in the house. He came down to the kitchen where the deceased was then located and shot him twice in the head. After shooting the deceased the offender left the premises with the firearm and met up with a friend for a drink at a hotel in Parramatta. He told the friend that he had just killed the deceased. The offender and the friend then drove to the Fairfield Police Station at about 10.40pm where the offender told the constable on duty that he had just killed someone. He handed the firearm wrapped in a jacket to the constable. The offender was arrested and taken into custody, subsequently interviewed and later charged with the murder of the deceased. He has been in custody since that time.

5 When interviewed the offender adhered to his confession and cooperated fully with the interviewer and with the investigating police. They had earlier attended the premises at about 11.15pm on the same evening and found the body of the deceased on the floor in the centre of the kitchen. He was fully clothed and was wearing two pairs of latex gloves. He was in a semi-foetal position and there were resealable plastic bags on the floor behind his legs containing cannabis. A roll of duct tape was on the floor in front of his face.

6 Examination at post mortem showed that the deceased had two gunshot entry wounds to his head. One was located on the left side of the forehead above the left eyebrow. There was no surrounding stippling, soot deposits or a muzzle imprint around this wound. The second gunshot wound was behind the deceased's left ear. That wound was surrounded by powder stippling. The muzzle of the firearm was approximately 10cm away from the deceased when the second shot was discharged. Police observed various quantities of harvested cannabis in the house and equipment consistent with its cultivation and supply.

7 There were no witnesses to the death of the deceased. The factual account of what happened came entirely from the offender. That account was wholly consistent with the physical evidence discovered by investigating police at the scene and with the results of the post mortem examination.

8 The offender took part in an electronically recorded interview with the police in the early hours of the morning of 3 November 2007. He said that he had done a terrible thing and had killed a man. He told the police that he was not a dangerous man but that in killing the deceased he did not have a choice. He said that it was him who killed the deceased and nobody else.

9 He said that he went to the house on the day of the shooting and had been there approximately long enough to smoke a packet of cigarettes before the deceased arrived. He said that he had to be at the house because the deceased had told him to be there. He said that he was scared of the deceased who had threatened to kill his family if he did not do as he was told. The deceased wanted him to "sell drugs to the kids".

10 The gun used for the killing belonged to the deceased. He kept it next to a bed in the house. The offender had first been shown the gun by the deceased about two months earlier. It was loaded at that time. While waiting for the deceased to arrive at the house the offender was thinking and planning how to ask the deceased to let him go so that he could lead a normal life.

11 The offender said that the thing that led him to get the gun on the day was that the deceased had told him to forget about his wife and daughter. He said, "He molested me so many times". The context in which these things were said appears from other material in the record of interview, which in summary amounts to a recitation of attempts by the offender to break free from the influence of the deceased and the deceased's threats to the offender and his family if he decided or attempted to do so. On occasions when the offender had asked the deceased to let him go, the offender said the deceased would just laugh at him and would say that he "didn't give a shit" about the offender's wife or child.

12 The offender described how he felt when he shot the deceased. He said, "I was so scared that he was going to do something to me. I felt relief when he fell down. I felt big time relief, big time, big time relief. Sorry to say that. I'm honestly, I'm sorry to say that". He said later, "He took my life. I didn't took [sic] his life. He took mine".

13 From there the offender went to an Irish pub in Parramatta where he remained drinking for about half an hour with his friend. He left the gun in his friend's car at this time. He said that he had decided to turn himself in to the police as soon as he shot the deceased.

14 He told the police that meeting up with the deceased again after a number of years occurred by chance and was something that he regretted. He said, "I wish I broke my legs that . . .day, both of them". They started going for coffee together after that and somehow it got to the stage where the offender felt that he could not leave. The offender was at that time a production supervisor in full time work and was held in high regard by his employer. About five or six months before the incident he had been offered a better job on higher wages with another employer, which he accepted. However, because of all the things that were happening to him with the deceased he was unable to concentrate on that work and in his words he "blew it". He said he missed a lot of days because of things he had to do "down there". For example, he had to drive the deceased to various locations to deliver packages or do so himself. He was not paid for this. He said that he made these deliveries for the deceased without getting paid because he was scared for his life and his family. He said he was scared less for himself than for his wife and daughter and his brothers. The deceased had threatened to kill what the offender described as "the entire of my family".

15 Significantly the offender said that the most recent time that the deceased had threatened him in this was the day of the shooting. He had said to the offender to forget about his wife and daughter. The deceased had said to him, "Fuck them". The offender said that he "didn't have a choice". He said, "I didn't have any more money, didn't have any more anything to give him". He described his life under the influence and pressure from the deceased as "disaster". He said, in effect, that even if he had a theoretical choice between the work that he was doing for the deceased and a life with his wife and daughter, it was in truth no choice at all because he had to do what the deceased told him to do.

16 On the day of the shooting the deceased and the offender conversed at the house in Serbian. After being told that he had to choose between his family and the deceased, he told the police, "That was it. I couldn't stand, something blocked. I couldn't stand it. That was it. That was it". From that point the offender went upstairs to get the gun. He said that at that point he "was thinking about [his] baby daughter, about [his] baby". He said, "I was thinking about my baby. I wasn't thinking about me".

17 The offender was asked what he had been thinking about when he approached the deceased with the gun. He said the following:

"Nothing. About my daughter. When he fell, I felt the relief that he can't hurt my baby. I wasn't happy. I don't feel sorry for him. I feel sorry for others. I feel sorry for other people. All my family, his family."

18 The offender was asked whether he regretted the fact that he had shot the deceased. The offender replied, "I didn't have a choice. I didn't have a choice". Later, in the context of asking to be placed in a cell by himself, the offender said, "I murder". This is referred to below in the context of contrition and remorse.

19 Sergeant Whitton had been rostered on duty at the Fairfield Police Station on the evening of 2 November 2007. He described seeing the offender at the station when he returned from another call at about 11.10pm. The offender was then seated on the floor and was wearing handcuffs. He said that the offender appeared very upset. His eyes were red as if he had been crying. He continually stared at the walls. He repeatedly asked for a drink and a smoke. At one point he heard the offender say, "I can't sell drugs to kids, I have a ten months [old] daughter". Sergeant Whitton said that he heard the offender say several times that he did not wish to sell drugs to kids. The offender said to the sergeant at one stage, "I shoot once. Then he was down. Then I go one more. To make sure". The offender demonstrated firing a gun with his hands as he said these words.

20 The offender was born in Serbia on 26 October 1975. He is married with a young daughter. His parents are still alive and live in Sydney. They have three sons of whom the offender is the eldest. The family came to Australia on 18 August 1995 as refugees from the war in Bosnia. The offender's father had been a serving police officer for 22 years before coming to Australia. His mother has since written and published a series of books in the Serbian language that have been sold and distributed mainly in her homeland. The offender's first brother is a financial controller and TAFE lecturer and is soon to qualify as a CPA. The offender's younger brother is also an accountant working in banking. He has represented Australia playing indoor soccer. He gave evidence and described the family as very close. He said that the offender had on many occasions described to him what he had done as something he was going to have to live with for the rest of his life and as "something he will never be able to avoid". The offender was made bankrupt following his arrest with debts of approximately $50,000.

21 The offender did not give evidence before me. Apart from the offender's brother there was no other oral evidence.

22 Section 23A of the Crimes Act 1900 provides that murder is to be reduced to manslaughter where a person's capacity to understand events, or to judge whether the persons actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, provided that the impairment was "so substantial as to warrant liability for murder being reduced to manslaughter". This was formerly referred to as "diminished responsibility". The scope of the defence has narrowed since legislative amendment in 1997 but the cases concerning diminished responsibility remain relevant on the question of sentence.

23 As in the case of manslaughter by reason of provocation, what is ordinarily involved in substantial impairment cases is a conclusion that the taking of human life was the consequence of a deliberate and voluntary act, performed with intent to kill or cause grievous bodily harm, or with reckless indifference to human life: R v Blacklidge (Court of Criminal Appeal, 12 December 1995, unreported). The abnormality of mind diminishes but does not negate the offender's responsibility: R v Blacklidge (supra); R v Dawes [2004] NSWCCA 363 at [34]; R v Low (1991) 57 A Crim R 8 at 17.

24 It is clear in the present case that the offender acted with an intention to kill. The firing of the second shot, and the offender's expressed reason for doing so, is a further indication of this if any further indication were needed. It becomes necessary for me to consider the degree to which the offender's mental condition was impaired beyond that required to make out the partial defence. While a high degree of impairment suggests a corresponding reduction in or diminution of culpability, it may also raise the spectre of future dangerousness. I note immediately that the Crown makes no submission that the offender poses any risk to the general community and I would find even in the absence of such a concession that the offender's propensities that led to the commission of the present offence were at all times specifically directed only to the deceased.

25 Dr Olav Nielssen prepared a psychiatric report dated 26 February 2009 regarding the offender, who he interviewed for that purpose at Parklea Correctional Centre on 18 December 2008 and again by audiovisual link on 29 January 2009. He took a history from the offender that is consistent with those matters to which reference has already been made.

26 The offender told Dr Nielssen that the deceased was "a good person to know because everybody was scared of him". The offender told the doctor that he knew the deceased to be a violent and aggressive person when he was a teenager and was feared by people who knew him in Australia. He reaffirmed his regret at having renewed contact with the deceased in about 2005 even though at that time in 2005 it appeared to the offender that the deceased had changed and "seemed like normal guy".

27 Dr Nielssen was told that the deceased took the offender to a house and showed him a hydroponic cannabis operation but threatened to harm him if he told anyone about it. At a later meeting the deceased slapped him and said "what you think I show you . . . wake up . . . it's not a game . . . I know all about you". The offender told the doctor, "at this point my nightmare starts". The deceased used a mixture of manipulation and threats to get him to participate in his drug growing activity. He said, "there was not much pressure at first but I didn't know how to get rid of him".

28 The deceased subsequently increased the pressure on the offender and required him to rent the house. The deceased told him, "one last favour and then I'll let you go". The offender told Dr Nielssen that he had associates who could kill him and kill his family. He repeated the story of having borrowed money to provide to the deceased as if it were the proceeds of drug sales. The offender said that he became increasingly concerned and anxious about his situation and worried that if things went wrong he could end up in gaol or disgraced. The deceased was increasingly aggressive and assaulted him several times. When asked why he did not simply leave the situation he told the doctor that he was "too scared" and felt as though he could not escape.

29 The offender reported a history of suicide in his mother's family (his maternal great grandmother) and in his father's family (his paternal great uncle). The offender reported intrusive, unwanted recollections of his wartime experiences in Bosnia including evacuation to a village close to the front line and seeing injured troops. He also reported a distressing memory of hearing a person being interrogated and then murdered in the cellar of a house where he had taken shelter.

30 He also reported symptoms of depression in the period before the offence, including disturbed sleep, anxiety and morbid thoughts, including thoughts of suicide, although he denied seriously contemplating this because of his family. He took ecstasy and drank in the mornings to help control his anxiety. He did not seek treatment.

31 The offender said that he had not been a heavy drinker until about six months before the offence and had not used illicit drugs until shortly beforehand. His alcohol intake increased to between half a bottle and a bottle of scotch per day, including drinks in the morning to help control anxiety. He had not abused illicit drugs until several months before the offence when he started taking ecstasy given to him by the deceased to sell. He estimated that he had taken a total of about 50 such tablets.

32 Dr Nielssen diagnosed the offender to be suffering from a substance abuse disorder in remission and adjustment disorder with depressed mood. Part of the detailed opinion that he offered is in the following terms:

"The diagnosis of adjustment disorder, or a clinically significant level of depression in response to a life event, was based on [the offender's] account of severe anxiety and depression in the months before the offence. It is difficult to separate the effect of the reported intimidation by [the deceased] from the effect of drugs that are known to trigger symptoms of anxiety and depression. However, the distress reported by [the offender] when recounting the events more than a year afterwards suggests that at least part of his symptoms were due to his circumstances.

[The offender] demonstrated an adequate understanding of the charges [sic], the evidence in the case, and was assessed as being able to understand legal advice, including advice regarding legal procedure and to be able to follow any proceedings in a general sense without the assistance of an interpreter.

[The offender] did not report committing the offence in response to symptoms of mental illness and was not thought to have a major mental illness.

He had an underlying condition within the meaning of Section 23A of the Crimes Act in the form of a depressive illness arising from his circumstances in the months before his arrest. His mood state is evident in his attending a police station to confess and the quality of his answers in the ERISP. Severe depression can result in a morbid appraisal of a person's view of their circumstances and impairment in problem solving and in their capacity to consider alternative courses of action.

[The offender] was assessed to be moderately depressed at the time of the recent interview and to be likely to benefit from treatment for depression with either counselling or with antidepressant medication."

33 Dr Jeremy O'Dea examined the offender at the request of the Crown at the Parklea Correctional Centre on 11 March 2009 over the course of approximately two hours and prepared a report dated 17 March 2009. It is sufficient to observe for presently relevant purposes that Dr O'Dea recorded histories in categories referred to by Dr Nielssen that were identical or substantially similar to those recorded in Dr Nielssen's report. This included a history of the events leading up to the offence and the commission of the offence. Dr O'Dea did not diagnose the offender as suffering from a major psychiatric illness at the time of his examination but went on to express the following opinion:

"41. However, he gave a history, supported by others and the ERISP, of a Depressive Disorder in the 2 to 6 months leading up to the alleged offence, and at the time of the alleged offence, that he related directly to the stressors of his association with the [deceased] and the alleged threats made by this person against [the offender's] family. This Depressive Disorder is likely to be best understood as an Adjustment Disorder with Depressed Mood.

42. He also gave a history in this 6 months period of alcohol and presumed amphetamine use disorder. His history of substance abuse leading up to the alleged offence is likely to have significantly contributed to the development of his Depressive Disorder. In addition, and from his account of his substance use on the day of the alleged offence, it is highly likely that he would have been intoxicated at the time of the alleged offence.

43. At the time of our interview it was apparent that [the offender] was continuing to suffer from symptoms of depression in response to his current predicament, despite his history of substance use disorder being in apparent remission.

44. [The offender's] Depressive Disorder may be considered an underlying condition within the meaning of Section 23A of the New South Wales Crimes Act 1900, with his reported depressed state at the time of the alleged offence constituting an abnormality of mind that may have, at least to a significant extent, impaired his ability to control himself at the time of the alleged offence.

45. However, his reported alcohol and other drug intake at the time of the alleged offence was also likely to have substantially and significantly [affected] his mental state and substantially and significantly impaired his ability to control himself at the time of the alleged offence. The relative contribution of his alcohol and other drug use to his mental state at the time of the alleged offence and to his ability to control his actions in relation to the alleged offence, compared to the contribution of his psychiatric diagnosis of a Depressive Disorder in understanding his mental state at the time, is difficult to quantify but likely to be significant.

46. Regardless of the outcome of the criminal proceedings, [the offender] will require ongoing support to help him cope with the stressors he now faces."

34 In R v Low (supra) at 18-19, Lee CJ at CL said the following:

"A finding of diminished responsibility may occur in many many circumstances, excessive alcoholism causing brain damage, injury to the brain, mental condition arising in various ways and giving rise to delusions and the like, but such conditions do not deny the legal responsibility of the person concerned for criminal acts and the legislation has required that such a killing shall be seen as an unlawful homicide. The taking of life in circumstances other than in self-defence or by accident, is regarded in our community as a grave crime and notwithstanding the concession that a lesser crime than murder is committed when there is diminished responsibility under s 23 A , it is wrong to approach the matter on the footing that the killer, in such circumstances, is necessarily to be treated as if he lacked any capacity to control his will so as to refrain from causing the death of his victim. I repeat what was said by Sir Laurence Street in Hill (1981) 3 A Crim R 397 at 402.


'It has been said that manslaughter, perhaps beyond any other crime, is protean. The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attendant by the utmost caution. It can be seen to be constantly written in the decisions of reports 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.'

That latter paragraph, in my view, is entirely appropriate to sentencing when s 23 A of the Crimes Act is called into question and, as I have said, it is quite wrong to take a view that merely because there is an element of diminished responsibility, which substantially impairs a person's judgment, that that is the end of the matter and that a light sentence must inevitably follow. "

35 In my view this evidence demonstrates that the offender's degree of impairment was approaching the higher end of the spectrum. The degree of impairment that is required to come within the terms of s 23A must itself be substantial so that any comparison of cases to assist in determining where the level of impairment falls is to be limited by definition to cases of substantial impairment in the first place. Although the impairment may be less than total it must be more than trivial. The medical evidence suggests a strong connection between the offender's depressed mental state and the intimidation that he experienced at the hands of the deceased. His continued rumination about it as long after the event as his first consultation with Dr Nielssen was in the doctor's mind a strong indicator of the connection between the offender's condition and the circumstances that led to the commission of the offence.

36 It is not sufficient for the condition to be transitory or ephemeral. In this case the Crown conceded that the medical evidence indicated that the impairment from which the offender was suffering had an impact upon his ability to think clearly and to control his actions and that the condition had existed certainly over the days leading up to the offence if not for a week or so. I bear in mind that it has been held that medical evidence is not of great assistance in determining whether the impairment is substantial and that it is ordinarily a matter of common sense for the tribunal of fact: R v Trotter (1993) 35 NSWLR 428.

37 At one level it may seem odd that the offender, faced with the constant and overpowering intimidation to which the deceased subjected him, did not simply seek assistance from the police about it. However, two things need to be noted and compared. First, the offender was involved in the deceased's illegal activities that would have exposed him to potential criminal sanctions if he had gone to the police. Secondly, however, and in my view most significantly, the fact that the offender chose to take the life of the deceased as an alternative course of conduct, and thereby to expose himself to the certainty of far greater and more serious consequences, itself bespeaks as a matter of common sense that the level of impairment that afflicted him must have been very substantial indeed. As the Crown specifically acknowledged in the course of oral submissions, the medical evidence suggests that his thinking was so clouded by the time of the commission of the offence by his depressive state that the alternative course, which to a casual observer appears so logical, was beyond his (then) ability or capacity to work out, and became tragically coupled with the fact that he was unable to control his actions. In the words of the Crown's submissions, what may seem obvious "in the cold light of day" was not obvious or even apparent to the offender in the days leading up to and including the day of the commission of the offence.

38 I take it to be common ground in this case that I should find "special circumstances" within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 having regard to the opinions expressed by both Dr Nielssen and Dr O'Dea that the offender requires ongoing support to cope with the stressors that he now faces and probably also treatment for depression with either counselling or with antidepressant medication. It is important in my opinion that the offender has continuing medical support upon his release to ensure that his mental health is adequately and constantly monitored and where appropriate treated accordingly. It is also important to note that this is the offender's first time in gaol and indeed his first experience of any sort with the criminal justice system. It follows that the sentence that I intend to impose will entail a not insubstantial period on parole under supervision.

39 There are also a number of matters that are in the offender's favour that I take into account. These include his guilty plea, the fact that he has no prior criminal history, his expressions of remorse and contrition and his good prospects of rehabilitation. These are considered in more detail below.

40 Section 22 of the Crimes (Sentencing Procedure) Act 1999 requires the Court to take account of the fact that the offender pleaded guilty and the time when he did so. In the present case the offender's plea of guilty to manslaughter was not entered until the day upon which his trial upon an indictment for murder was due to commence. In this respect it should be noted that he was not examined by a psychiatrist with a view to assessment of his mental state for the purposes of s 23A of the Crimes Act 1900 until late in 2008 and early 2009 and that a report from Dr Nielssen was not available for consideration by the offender or his legal advisers until late February this year. The Crown's offer to accept a plea of guilty to manslaughter did not itself emerge until following receipt of Dr O'Dea's report on 17 March this year within two days of which the offender's plea was entered.

41 The Crown readily and in my view properly conceded that in terms of the utilitarian value of the offender's plea of guilty, the offender and his legal advisers could not in practical terms have entered the plea very much earlier than it was in fact entered in the circumstances. Moreover, the Crown also conceded that it had been given an indication in the weeks leading up to the trial that the offender intended to plead guilty to manslaughter in front of the jury so that the utilitarian value of the plea had to be considered as well by reference to the fact that the Crown did not have to prepare the matter upon the basis that there was a possibility of an acquittal. That was a matter that the Crown said specifically should be taken into account. The Crown submitted that a discount of somewhere between 15 and 20 per cent would be appropriate.

42 Mr A Webb of counsel who appeared for the offender submitted that the circumstances of this case were such that a discount of 25 per cent was appropriate. The offender's plea had a significant utilitarian value not so much for its timeliness as for its relationship to the offender's early admission that he had committed at least the physical acts that caused the death of the deceased. The extent to which the resources of the State had to be devoted to a lengthy investigation and prosecution was significantly modified by the offender's early admission that he had killed the deceased and his relatively early indication that he would plead guilty to manslaughter in front of the jury.

43 In my opinion a discount of 25 per cent is in order in this case. See R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383.

44 The offender was entirely without a prior criminal history of any kind whatsoever. It was submitted on behalf of the Crown that his involvement with the deceased in the cultivation of cannabis disentitled the offender from being characterised as a person of good character. He preferred to describe the offender as someone who was not of unblemished good character. The Crown conceded however that it was only the offender's initial involvement in the deceased's drug related activities that was relevant for the purposes of this submission because at the later stages of his involvement the evidence makes it clear that the offender's participation was effectively against his will.

45 The Crown specifically acknowledged that there was no likelihood of reoffending and no suggestion of future dangerousness. There is no identifiable risk to the community from which it should be protected. Accordingly, the sentence to be imposed should not be increased beyond what is proportional to the crime because of some anticipated or theoretical risk of recidivism. The offender's history warrants no departure from this principle. Personal deterrence is a matter that I consider to be of no present relevance.

46 The offence was objectively serious, involving as it did a decision to take a human life. In the case of an offender suffering from a mental disorder or abnormality, general deterrence is a factor that is to be given less weight than otherwise would be the case. The offender is not someone whose acts offer up the foundation for producing an informative example that might illuminate the role of deterrence in the sentencing equation. Of course, considerations of general deterrence cannot ever be completely disregarded or treated as irrelevant: see R v Wright (1997) 93 A Crim R 48; R v Engert (1995) 84 A Crim R 67. However, in the circumstances of the present case I think that it is appropriate to proceed upon the basis that considerations of general deterrence and retribution should be given a much reduced significance. In so saying I have not disregarded the matters referred to by Badgery-Parker AJ in R v Privett [1999] NSWSC 1076 at [2] as follows:

"[2] The sentencing process is founded on well established principles which for present purposes I can conveniently take from the judgment of Allen J (with whom Gleeson CJ and Finlay J agreed) in Regina v Camilleri (8 February 1990, NSW Court of Criminal Appeal, unreported):

'In seeking to determine in any case the sentence appropriate to a particular crime it is always of importance to have regard to the gravity of the offence viewed objectively. Unless that is done the other facts requiring consideration in order to arrive at the proper sentence cannot be given their rightful place. A sentence imposed must be commensurate with the seriousness of the crime in the sense that it should, having regard to the all the proved circumstances, accord with the general moral sense of the community. It should also serve as a sufficient deterrent both to the offender and to others. The purpose of that deterrence is to prevent the commission of such offences, and whilst justice and humanity require that the previous character and conduct and the probable future life and conduct of the individual offender should be given most careful consideration, those are factors which are necessarily subsidiary to the main consideration which determines the appropriate amount of punishment, that is the protection of the public. The fundamental purpose of punishment is the protection of society. Unless those basic principles of sentencing are adhered to, errors will occur.'"

47 The good character of an offender is something that may be taken into account in mitigation of penalty. Whereas the courts have indicated that the categories of offences, in relation to which less weight should be given on sentence to evidence of prior good character, are not closed, I do not consider that the present offender is anything other than a person of prior good character. He has no criminal record. References tendered on his behalf from his former employers speak in glowing but credible terms about him as a trusted and loyal employee. I do not consider that his fractured involvement in the illegal activities of the deceased disqualify the offender in this case from any benefit that may be available to him as a person otherwise of previous good character.

48 In the same sense I do not consider that the sentence to be imposed should be structured in a way that factors in the recognition of a need for rehabilitation. The offender's medical condition and the need for ongoing treatment, as already mentioned, are matters that I have taken into account. There are not evident in the offender any entrenched attitudes or pathological tendencies that pose a threat to the community in general or anyone in particular or that require correction. Indeed, consistent with his expressions of contrition and remorse, the offender has ably demonstrated the existence of considerable and obviously painful insight into the nature and seriousness of his offending conduct and its effect on others.

49 The offender was assessed by Justice Health shortly following his incarceration. The progress notes relating to entries made by a mental health nurse were tendered in evidence before me. One entry made on 19 November 2007 is instructive and is partly in the following terms:

"Dusan was a little teary initially but assured me he is feeling better, has a lot to live for and is well. His wife and daughter are visiting regularly. He is not as concerned about other inmates – just now upset with what he has done. He is expressing remorse and concern for the victim's mother. Keeps digressing to express regret, remorse and ask himself why he did such a thing."

The Justice Health clinical or progress notes contain other references in cognate terms.

50 The offender also surrendered to the police within hours of committing the offence and made a complete admission of his involvement in all physical aspects of the crime. As referred to earlier, he even spoke in terms of "murder", which I take for present purposes to be his admission of the commission of the act that caused the death of the deceased. It is inconsistent with any attempt to lessen the significance of what the offender had done or with an attempt to construct an assessment or appraisal of his role that was impermissibly or inappropriately favourable to him in the face of evidence to the contrary. The only deficiencies evident in the way that the offender assisted the police are to be found in the emotional and psychiatric constraints under which he laboured, which were evident immediately following his attendance at the police station and during the conduct of the ERISP.

51 Indeed, in this last respect the ERISP records several occasions when the offender speaks in terms about his feelings for the family of the deceased in light of what he had done. These expressions of remorse are patently genuine, as the recorded interview makes plain. The observations made by the practitioners at Justice Health are eloquently and forcefully redolent of this as well. It is not beside the point also to observe that the offender spoke to these practitioners about taking his own life as a response to what he had done.

52 Although the offender did not give evidence before me, I had the opportunity to observe him in court during the sentencing proceedings. In particular I noticed his reaction during the evidence given by his brother concerning the fact that he had taken the life of another person and would have to live with that fact for the rest of his own life. The offender was weeping almost uncontrollably at one stage in a way that was in my opinion responsive to what was occurring and undoubtedly genuine.

53 The mother of the deceased was present during the sentencing hearing and spoke to me in an emotional and moving way from the public gallery. She also prepared a victim impact statement that I have read. The death of the deceased is undoubtedly a terrible and unending fact of life for her now and I have the greatest sympathy for her and for the rest of her family. Nothing that I have said in the course of delivering these remarks should be taken as in any way derogating from or diminishing the importance of the life of the deceased in the eyes of his family and friends who remember him. I am however mindful of the principles referred to in R v Previtera (1997) 94 A Crim R 76 and R v Bollen (1998) 99 A Crim R 510, and I must conform to them.

54 Taking into account all the objective facts and all of the subjective circumstances I consider that the following sentence should be imposed. Dusan Maric, you are convicted of the manslaughter of Zoran Vujinovic. I sentence you to imprisonment consisting of a non-parole period of 5 years commencing on 2 November 2007 and expiring on 1 November 2012, with a balance of term of 2 years and 6 months commencing on 2 November 2012 and expiring on 1 May 2015. The earliest date of eligibility for parole is specified as 1 November 2012.

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