R v Fraser

Case •

[2025] NSWSC 1202

•

15 October 2025

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: R v Fraser [2025] NSWSC 1202
Hearing dates: 1 August 2025; 26 September 2025
Date of orders: 15 October 2025
Decision date: 15 October 2025
Jurisdiction:Common Law
Before: Chen J
Decision:

(1) The offender, Zachary Fraser, is convicted of the manslaughter of Darcy Schafer-Turner.

(2) For the manslaughter of Darcy Schafer-Turner, I impose a sentence of imprisonment consisting of a non-parole period of 4 years and 2 months, commencing from 15 May 2023, and a head sentence of 6 years and 6 months. The offender will become eligible to be released on parole on 14 July 2027. This term has been reduced by a discount of 25 per cent for the plea of guilty [REDACTED].

(3) Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), I advise you of the existence of that Act and the fact that it applies to you and to this offence. I direct your legal advisers to explain the significance of this fact to you.

Catchwords:

SENTENCING — manslaughter by unlawful and dangerous act — early guilty plea — objective seriousness of the offence — impact of post-offence conduct on the assessment of objective seriousness — subjective considerations relevant to reducing sentence — remorse and prospects of rehabilitation — impact of the offender’s upbringing, relative youth, addiction and mental health issues on sentence — whether special circumstances warranted a variation in the standard ratio

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:

Barbaro v The Queen [2012] VSCA 288; (2012) 226 A Crim R 354

Brzozowski v R [2023] NSWCCA 129

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Chandler v The Queen [2022] NSWCCA 124

Collier v R [2012] NSWCCA 213

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Dulihanty v R [2013] NSWCCA 275

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

FL v R [2020] NSWCCA 114

Gore v R [2010] NSWCCA 330; (2010) 208 A Crim R 353

IE v R [2008] NSWCCA 70; (2008) 183 A Crim R 150

KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571

Lane v R [2013] NSWCCA 317; (2013) 241 A Crim R 321

Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Ngo v The Queen [2018] NSWCCA 296

Ohanian v R [2017] NSWCCA 268

Paterson v R [2021] NSWCCA 273

R v Campbell [2014] NSWCCA 102

R v CLD [2015] NSWCCA 114

R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1

R v Olbrich (1999) 199 CLR 270; [1999] HCA 54

R v Van Ryn [2016] NSWCCA 1

R v West [2014] NSWCCA 250

R v White [2023] NSWSC 611

R v Wilkinson (No 5) [2009] NSWSC 432

R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep)

Sausa v R [2023] NSWCCA 95

Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74

Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353

Stojanovski v R [2013] NSWCCA 334

Tabbah v R [2019] NSWCCA 324

Category:Sentence
Parties: Rex (Crown)
Z Fraser (Offender)
Representation:

Counsel:
V Garrity (Crown)
G Thomas (Offender)

Solicitors:
Solicitor for Public Prosecutions NSW (Crown)
Fahmy Lawyers (Offender)
File Number(s): 2023/00155581
Publication restriction: Pursuant to ss 7(a) and 7(b) of the Court Suppression and Non-publication Orders Act 2010 (NSW), the publication of particular aspects of these sentence proceedings is prohibited.

JUDGMENT

  1. HIS HONOUR: Darcy Schafer-Turner was a young man who was unconditionally loved by his family. To his mother, Karla, he was a son with an “adventurous spirit” and a bright future ahead of him. To his sister, Jazmyn, he was a funny and caring brother who was motivated by “so many dreams and aspirations”.

  2. Darcy was killed at a unit in Peakhurst in the afternoon of 27 April 2023. He was only 22 years of age at the time.

  3. On 26 May 2025, Zachary Fraser (‘the offender’) pleaded guilty to manslaughter, contrary to s 18(1)(b) of the Crimes Act 1900 (NSW), for his involvement in Darcy’s death.

  4. He is now to be sentenced for committing that crime.

Background

  1. The facts giving rise to this offending are accepted between the parties, and are set out in an agreed facts document signed on 23 May 2025 (‘AF’). The facts are these.

The relationship between Darcy, the offender and Jan Kwacz

  1. The offender was good and close friends with Darcy having known him since school. They spoke regularly (AF at [10]). The offender was also close friends with Jan Kwacz and lived with him in a unit in Lawrence Street, Peakhurst (‘the unit’). The unit was leased by the offender.

27 April 2023

Before Darcy’s death

  1. At about 2:10pm, Mr Kwacz travelled in an Uber to Bunnings Warehouse (‘Bunnings’) at Padstow. He purchased a box of black vinyl gloves and returned to the unit, at 2:55pm (AF at [13], [16]).

  2. At 3:48pm, Darcy arrived at the unit complex (AF at [17]). He had earlier arranged to collect cocaine to on-sell to his friend (AF at [15]) and was wearing a fluorescent orange work shirt (AF at [17]-[18]). Mr Kwacz greeted Darcy. Darcy entered the unit at 3:50pm.

  3. Darcy had previously dealt with Mr Kwacz. The offender and Mr Kwacz both believed that Darcy owed Mr Kwacz about $50,000 (AF at [20]). Mr Kwacz had told the offender that his plan was to “just make [Darcy] pay the bill” because “usually when people are put in a position like that, they can find ways to get cash pretty quickly” (AF at [100](n)).

Darcy’s death

  1. Upon entering the unit, the offender was seated on the lounge in the loungeroom. Mr Kwacz immediately overpowered Darcy by putting him in a chokehold and forcing him to the ground. Mr Kwacz instructed the offender to “grab tape”. Duct tape was applied over Darcy’s mouth (AF at [22], [99](d)).

  2. Mr Kwacz and the offender held Darcy down to the ground. Mr Kwacz still had Darcy in a chokehold. The offender sat on his legs (AF at [23]).

  3. Darcy eventually stopped struggling and Mr Kwacz removed the tape from his mouth. Darcy had been vomiting but could not expel it (AF at [24]). Mr Kwacz unsuccessfully attempted cardiopulmonary resuscitation (AF at [99](e)). Darcy did not regain consciousness (AF at [25]).

  4. The direct cause of Darcy’s death was suffocation. The antecedent cause was “aspiration of gastric contents in the setting of external airway occlusion” (AF at [90]). The pathologist who examined Darcy’s body, Dr Loots, also noted “hyperaemic discoloration” on the left lateral chest wall, which may have been suggestive of soft tissue bruising (AF at [91]).

After Darcy’s death

  1. Mr Kwacz’s movements thereafter were as follows. First, he left the unit for a short time at 4:30pm, before re-entering it at 4:46pm (AF at [26]). Second, he left again at 5:20pm and returned at 8:00pm. This time, he moved Darcy’s vehicle about 500 metres from its previously parked location (AF at [28]-[29]).

  2. Meanwhile, the offender remained inside the unit for the next two days, save for two brief outings to collect food and alcohol deliveries (AF at [30]). Mr Kwacz had told him “pretty angrily … not to leave the house” (AF at [99](a)) and “don’t leave until I come back” (AF at [99](f)).

  3. At about 4:00pm, the offender messaged Witness B, whom he had previously communicated with though online PlayStation gaming and had visited in Queensland (AF at [31], [33]). He asked Witness B to “add” him on the encrypted messaging application, Signal (AF at [33]). Once connected on the Signal platform, the offender messaged Witness B, as follows (AF at [34]):

The Offender

There is someone laying on the floor in my bathroom dead.

…

Witness B

Why did you do it?

The Offender

It was an accident. I only meant to tie him up.

Witness B

What fully happened?

The Offender

I was sitting down playing Minecraft and my roommate said “Get ready”. I said “why, what's happening?” and he said “He's on his way, he'll be here in a minute”. As soon as the guy entered the door, my roommate put him in a headlock and I held his legs. I was sitting on his legs, turned to the TV and I felt him go limp. I felt like I was holding him for five minutes but it was more likely two. I said to my roommate, “I think he's out now”. My roommate just kept holding him in the choke hold. He twitched and my roommate said “Nah, he's not done yet”.

The guy was struggling heaps, he had a lot of fight in him. We put duct tape around his head.

Witness B

How long ago did it happen?

The Offender

About 2 hours ago[.] When we took the duct tape off his mouth, he was throwing up and it was clogged, it just kept coming. My roommate was trying to give him mouth-to-mouth with spew coming up. I told him [“]You're not fuckn’ doing much, his throat is clogged.[”]

The Offender

Do you know anybody that will move the body for me?

Witness B

I know one person. It's late notice and it probably won't happen and he won't do it for free. I'll have a chat to him and see what he would want.

The Offender

Just try.

  1. Witness B then messaged Charles Turnbull, who he had known for about four years (AF at [32]), and arranged to meet him at a storage shed in Queensland (AF at [35]). He wrote:

“Some fellas had an accident down south, there’s a job for you to go clean up, how much do you want?”

  1. He also told him that there was a body to dispose of (AF at [35]).

  2. At the storage shed, Witness B showed Mr Turnbull two photographs from within the unit sent by the offender (AF at [36], [39]). One depicted Darcy on the ground, with his legs protruding from the main bathroom (AF at [37]). Witness B called the offender and passed the phone to Mr Turnbull. Witness B understood that Mr Turnbull would be paid $30,000 to dispose of Darcy’s body (AF at [40]).

28 April 2023

  1. The offender updated Witness B that Darcy’s body was bloating (AF at [42]).

29 April 2023

  1. Mr Turnbull flew from Brisbane to Sydney and arrived at 12:58pm.

  2. At 1:18pm, Mr Turnbull left Sydney airport and travelled in a taxi to Bunnings at Caringbah. Mr Turnbull messaged the offender.

Gathering and unloading “supplies”

  1. Mr Turnbull purchased various items at Bunnings, including a storage container, respirators, microfibre cloths, duct tape, cleaning fluid, chlorine and gloves. Mr Kwacz had returned to the unit at this time with a flat platform trolley (AF at [48]).

  2. Mr Turnbull travelled in an Uber to the unit, arriving at 3:29pm (AF at [49]). Mr Kwacz let Mr Turnbull in.

  3. Mr Turnbull recalls meeting the offender, seeing Darcy, and observing that a portion of carpet had been cut from the floor (AF at [50](b), [50](c)). He was asked by Mr Kwacz to collect further items from Bunnings, and was given $1,000 to do so from the offender (AF at [50](d)). Mr Turnbull returned to Bunnings at Caringbah in Darcy’s vehicle, where he purchased additional items including a metal cabinet, plastic, cable ties and cleaning supplies (AF at [52]).

  4. At about 5:30pm, Mr Turnbull returned to the unit carpark and was met by the offender (AF at [53]). They began to remove rubbish from Darcy’s vehicle and, whilst doing so, CCTV cameras in the carpark relevantly recorded the following exchange (AF at [54]):

The Offender

You've gotta be careful *of what's in ** door **

Mr Turnbull

Your mate said ... there's a wallet there, try and find it ... some trash in his car. …

The Offender

That camera there is kind of covering a blind spot here.

  1. And, at 5:33pm (AF at [54]):

The Offender

How's me mate fucking up?

Mr Turnbull

What's that?

The Offender

He's the one that fucking started all this.

Mr Turnbull

The one upstairs?

The Offender

Yeah

  1. And, at 5:35pm (AF at [54]):

The Offender

Where the fuck would his wallet be?

…

The Offender

We'll have to ... I'll give him another pat down when we get up there.

Mr Turnbull

Who's that?

The Offender

Old mate ... To see if it's still on him ... should have five and a half grand by now.

Mr Turnbull

Can you trust your mate to ...

The Offender

Huh?

Mr Turnbull

Can you trust your mate to move the car or what?

The Offender

Yeah, yeah, yeah, I trust him he's just fucked up

  1. And, at 5:40pm (AF at [54]):

The Offender

Yeah but you know what he did? ... He sold him a keg of coke that had already been scooped out. So he did ** picked it up, cracked it open, looked kosher, get home and it's just fucking like scooped out with a spoon. So he wroughted us 50 grand. But his plan was to just tie him down get *** to do the shit *** like ** used to of *** get no ***confession*** then go get him to pick up ...

Mr Turnbull

Mmm

The Offender

Old mate wanted to fucking go commando on him

  1. And, at 5:42pm (AF at [54]):

Mr Turnbull

**He just got broker *** or never bringing cash ***

The Offender

Huh?

Mr Turnbull

*** He just got broker or … never bring cash?

The Offender

Nah…

The Offender

Well my mate was playing nice with him, like giving him free testers and shit stuff, just to keep in close reach, cause he didn't wanna scare him

Mr Turnbull

Yeah

  1. At 5:45pm, Mr Turnbull and the offender took the supplies from Bunnings upstairs and into the unit (AF at [55]). Mr Kwacz returned to the unit at 6:01pm (AF at [56]).

Removing Darcy’s body from the unit

  1. Mr Turnbull assembled the storage cabinet in the unit with the assistance of Mr Kwacz (AF at [100](i)). Darcy’s body was secured in the cabinet, with his hands tied to his belt. The three men then lifted his body into it (AF at [57]). The offender wore gloves when doing so (AF at [58]). The offender paid Mr Turnbull $20,000 (AF at [59]).

  2. At 8:15pm, the three men loaded the cabinet and the removed portion of carpet into the tray of Darcy’s vehicle (AF at [60], [100](j)). The offender updated Witness B that the job was “all done” (AF at [62]).

  3. Mr Turnbull drove Darcy’s vehicle to a hotel in Parramatta, where he stayed overnight (AF at [64]).

30 April 2023

Disposing of Darcy’s body

  1. Mr Turnbull purchased a small boat through Facebook Marketplace for $3,000 at about 2:00pm (AF at [66]). He dumped Darcy’s body – in the cabinet – into Warrell Creek at Macksville, shortly after 5:30pm (AF at [67]).

2 May 2023

  1. At about 9:30am, Mr Kwacz and the offender travelled to a restaurant in Wetherill Park in a vehicle driven by another associate, Evan Neal (AF at [68]).

  2. Mr Neal heard Mr Kwacz tell the offender not to turn “the” phone on until they were on the motorway – the phone referred to was Darcy’s. When they were, Mr Kwacz turned the phone on. Two messages were sent from Darcy’s phone to his landlord at about 11:00am concerning his payment of rent (AF at [69]).

  3. Mr Kwacz and the offender returned to the unit at 11:48am (AF at [70]).

  4. At 2:30pm, the offender left the unit with a duffle bag and suitcase and was driven to Coffs Harbour by Mr Neal. He told Mr Neal, “Jan has ruined my fucking life” (AF at [72]). He stayed in a friend’s house at Boambee for around 8-9 days, before then staying in a motel in Caboolture for a few days. He then flew back to Sydney and returned to his parents’ home in Panania, where he stayed for the night (AF at [100](m)).

3 May 2023

  1. At 8:57pm, Mr Kwacz left the unit for the final time (AF at [74]). He was carrying a duffle bag and suitcase (AF at [74]).

5 May 2023

  1. Mr Kwacz departed Australia at 3:05pm on an Etihad Airlines flight bound for Munich, Germany. Although the ticket was a return ticket, he has not returned, and a warrant remains outstanding for his arrest (AF at [96], [98]).

12 May 2023

  1. Police divers recovered Darcy’s body (AF at [83]-[84]). He was still wearing the fluorescent orange shirt (AF at [86]).

15 May 2023

  1. Police executed a search warrant at the unit. Relevantly, they identified that an L-shaped section of carpet had been removed from the floor alongside the main bathroom (AF at [95]).

  2. Police asked the offender to return to the unit to speak with them. He was arrested at about 8:00pm (AF at [98]).

  3. The offender later told police during the ERISP that “the plan wasn’t to do what happened” and that “it was just a shitshow, like, there was no organisation to it at all” (AF at [100](n)).

The relevant statutory provisions

  1. Manslaughter is an offence contrary to s 18(1)(b) of the Crimes Act. The maximum penalty for the offence is 25 years’ imprisonment: s 24 of the Crimes Act. No standard non-parole period applies.

  2. In sentencing the offender, I am required to use the maximum sentence as a legislative guidepost and to identify all factors relevant to the sentencing task, consider their significance, and then assess the appropriate sentence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]-[27].

  3. I have also had regard to the purposes of sentencing as expressed in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSP Act’):

3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows—

(a)   to ensure that the offender is adequately punished for the offence,

(b)   to prevent crime by deterring the offender and other persons from committing similar offences,

(c)   to protect the community from the offender,

(d)   to promote the rehabilitation of the offender,

(e)   to make the offender accountable for his or her actions,

(f)   to denounce the conduct of the offender,

(g)   to recognise the harm done to the victim of the crime and the community.

  1. These matters are considered in the course of dealing with the submissions that were raised.

The objective seriousness

  1. The form of manslaughter to which the offender pleaded guilty is manslaughter by unlawful and dangerous act (AF at [3]). The elements of this offence were summarised in Lane v R [2013] NSWCCA 317; (2013) 241 A Crim R 321 at [57] and in R v CLD [2015] NSWCCA 114 at [4].

  2. The unlawful and dangerous act was the assault of the deceased (AF at [5]), which occurred in the following circumstances.

  3. Upon Darcy’s arrival at the unit, at around 3:50pm, he was greeted by Mr Kwacz and taken inside. Upon entry, Mr Kwacz immediately assaulted and overpowered Darcy by putting him into a headlock/chokehold from behind and forcing him to the ground (AF at [22]). Mr Kwacz requested the offender to “grab tape” and “they taped over [Darcy’s] mouth with duct tape so that he did not yell out” (AF at [5], [22]). Having done this, the offender and Mr Kwacz “continued to hold [Darcy] down” – Mr Kwacz had Darcy in a chokehold and the offender was sitting on Darcy’s legs as he struggled to break free (AF at [23]).

  4. These events led to Darcy’s airway becoming obstructed and his death by suffocation (AF at [5]).

  5. The offender accepted that a reasonable person in his position “would have appreciated that his act exposed [Darcy] to a risk of serious injury” and also accepted that “he was aware at the time he participated in the assault that there was a risk of serious injury” (AF at [6], [7]).

  6. It was an agreed fact that the offender was a participant in a joint criminal enterprise (‘JCE’) with Mr Kwacz, thereby making him liable for the act which caused the death of Darcy (AF at [4]).

  7. Two matters should presently be noted. First, where (as here) the offence does not carry a standard non-parole period and given the circumstances that affect culpability in manslaughter vary, it has been said that placing the particular offending on a hypothetical range “is not only not obligatory, it is unlikely to be of much utility … [and] is best avoided”: Paterson v R [2021] NSWCCA 273 at [33] (‘Paterson’). Secondly, given manslaughter by unlawful and dangerous act can occur in a variety of circumstances, some more serious than others, the assessment of the objective seriousness of the offending is a critical requirement of the sentencing process: R v Campbell [2014] NSWCCA 102 at [27]; R v Van Ryn [2016] NSWCCA 1 at [133]-[136] (‘Van Ryn’). In this respect, the following observations of Gleeson CJ in R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep) warrant emphasis:

“…what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case.”

  1. Further, the importance of the assessment of the objective seriousness of the offence is to ensure that an adequate sentence is imposed in accordance with s 3A(a) of the CSP Act and that the sentence is proportionate to the gravity of the crime: Van Ryn at [134]-[135]; FL v R [2020] NSWCCA 114 at [58]. The assessment also enables use of the relevant legislative guidepost in this case, being the maximum penalty: R v West [2014] NSWCCA 250 at [27]; Van Ryn at [135].

  2. Based upon the agreed facts, the parties made submissions that were argued to bear upon the objective seriousness of the offending. The Crown’s ultimate submission was that the offending was “an objectively serious example of this type of offence” (Crown submissions at [16]), whereas the offender, whilst not employing any particular language to describe the objective gravity of the offending, nevertheless emphasised a number of matters of fact that he argued minimised it.

  3. Before addressing the competing positions and the findings sought, it is to be noted that, in relation to any finding of fact that is adverse to the offender, this must be established beyond reasonable doubt, whereas the offender bears the burden of proving matters that are submitted to be in his favour on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [64].

  4. The offender submitted that Mr Kwacz was the “primary offender in the assault” or, as a variant to this, that he was “plainly subordinate” to Mr Kwacz or, as a further variant, that he was “not the primary offender in the physical acts causing death” (offender’s submissions at [16](i), [16](ii), [16](iv)). The essential submission advanced by the offender – that Mr Kwacz was the “primary offender in the assault” – may be accepted given it was an agreed fact that Mr Kwacz was the “primary offender in the physical acts that were carried out in the assault” (AF at [8]).

  5. Following on from this, the offender submitted that the relative importance of the “individual roles in carrying out the assault must be borne in mind” and that his roles were confined to “assisting” Mr Kwacz tape over Darcy’s mouth with duct tape and sitting on Darcy’s legs (offender’s submissions at [16](iv)). Putting to one side his involvement in seeking to physically subdue Darcy by sitting on his legs, in my view, it is not correct to describe the offender as simply “assisting Mr Kwacz to tape over Darcy’s mouth”; rather, the agreed facts make it clear that, at a minimum, “they [both] taped” over Darcy’s mouth (AF at [5], [22]). With that qualification, whilst the offender’s acts maybe described as limited, their relative importance was self-evident: the “direct cause” of Darcy’s death was suffocation and “the antecedent cause [was] aspiration of gastric contents in the setting of external airway occlusion” (AF at [90]).

  6. The offender submitted that he was not aware beforehand of the manner in which Mr Kwacz would assault Darcy – that is, the use of a headlock/chokehold. That was an agreed fact and may be accepted (AF at [7]). I do not regard that fact as being particularly significant in the circumstances given the offender accepted that he was aware at the time he participated in the assault that there was a risk of serious injury (AF at [7]) and, further, the offender accepted that he and Mr Kwacz “intended to overpower [Darcy] and assault him in order to get him to agree to arrange to pay the drug debt” that he owed Mr Kwacz (AF at [21]).

  7. The offender also submitted that the JCE was formed “a very short time before the commission” of the assault and, in that sense, the offence was “spontaneous” (offender’s submissions at [16](iii)). I do not accept this submission, essentially because there is no particular evidence about when the JCE was formed. The agreed facts, detailing the discussion between Mr Kwacz and the offender about the apparent drug debt and what they intended to do to have Darcy agree to repay it, do not specify precisely when this discussion occurred, albeit they appear under the date 27 April 2023 (AF at [20]-[21]).

  8. The offender argued that the assault itself was “limited temporally” (offender’s submissions at [16](vi)). The probabilities favour the assault spanning a number of minutes but precisely how many is difficult to say. There is no clear or reliable evidence upon which to make a particular finding, and I am not prepared to act upon the offender’s discussions with Witness B (see [16] above). In any event, I do not regard the fact that the assault occurred over a number of minutes to lessen its seriousness. There is no doubt that, during the course of it and, particularly following the application of the tape across his mouth, Darcy was struggling to breathe and struggling so he could.

  9. The offender also submitted that Mr Kwacz made a “sincere attempt” to revive Darcy “by way of CPR” (offender’s submissions at [16](v)). The submission is not inconsistent with the agreed facts which note that Mr Kwacz “attempted to do CPR but it was unsuccessful” (AF at [24]) and may be accepted. However, I accept, as the Crown emphasised, that it must have been abundantly clear that Darcy was unconscious and not breathing – if not then deceased – yet neither the offender, nor Mr Kwacz, called for medical assistance or emergency services. That is a matter that, as the Crown submitted, is part of the criminal conduct and bears upon its seriousness: Dulihanty v R [2013] NSWCCA 275 at [68]; R v White [2023] NSWSC 611 at [36].

  10. Further, not only did the offender not attempt to summon assistance but, having been left in the unit by Mr Kwacz, he took considerable steps to cover-up the crime including making arrangements for a person to attend (and to pay that person, Mr Turnbull) to remove and dispose of Darcy’s body.

  11. The offender submitted that his participation in the “arranging/engaging of Mr Turnbull to dispose” of Darcy’s body should not be “given any significant or undue weight in the overall instinctive synthesis to determine an appropriate sentence” (offender’s submissions at [25]).

  12. As the offender’s submission recognises, the objective seriousness of an offence can permissibly be informed by post-offence conduct or, as it is sometimes called, the surrounding circumstances, as Johnson J explained in R v Wilkinson (No 5) [2009] NSWSC 432 at [61] (‘Wilkinson’):

“Care must be taken in considering whether post-offence events may be taken into account in assessing the objective seriousness of the crime itself. However, the circumstances of an offence are not neatly marked out by two lines, one at the technical beginning and the other at the technical end of the crime: Director of Public Prosecutions v England [1999] 2 VR 258 at 263 [18]. Common sense and moral sense extend the circumstances of an offence which may be considered for an assessment of the objective seriousness of a crime, to events which precede and follow the technical limits of the crime. In imposing sentence for a crime, a judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime, and are properly to be regarded as circumstances of aggravation or mitigation: Director of Public Prosecutions v England at 263-264 [18]. The dumping of a body by a murderer constitutes an aggravating circumstance of the offence itself, and such concealment of the body is not limited in its significance to the absence of remorse: Director of Public Prosecutions v England at 266 [27]; Bell v R [2003] WASCA 216 at [23]-[25]; Colledge v State of Western Australia [2007] WASCA 211 at [16]; R v Cavkic (No. 2) [2009] VSCA 43 at [134].”

  1. In line with Wilkinson, I am satisfied, as the Crown submitted, that the arrangements the offender made to have Darcy’s body removed and disposed of is part of the criminal conduct and bears upon its seriousness.

  2. In addition to the above, the Crown submitted that the surrounding circumstances extended to a range of other matters that informed the objective seriousness of the offending. For example, the Crown submitted that the steps the offender took to conceal the crime; attempts to find Darcy’s wallet; and the use of Darcy’s mobile telephone after his death, were all matters that informed the objective seriousness of the offending. The offender contested that evidence of this kind could be used to inform that assessment. In the end, I am disinclined to use the further “post-offence conduct”, relied upon by the Crown and, in any event, I do not consider that it materially alters the gravity of the offending beyond the steps that the offender took to arrange, and pay for, the disposal of Darcy’s body.

  3. In the circumstances described, and based upon the findings that I have made, my assessment is that this was a moderately serious case of manslaughter. For completeness, I add that I have considered the offender’s submission that the Court “would have regard” to his mental state at the time of the offence – namely, his Dependent Personality Disorder – presumably, although the submission did not make this clear, on the basis that it contributed to the commission of the offence (offender’s submissions at [21]). As I later explain, that is not a submission that I have accepted (see [127]ff below). Further, as I will also explain later, I do not accept that the existence of that condition operates to lessen the offender’s moral culpability for the offence.

Aggravating factors

  1. The Crown submitted that the fact the offending was committed in company was an aggravating matter on sentence: s 21A(2)(e) of the CSP Act. The Crown argued that the combined presence of Mr Kwacz and the offender directly contributed to Darcy being overpowered almost immediately upon his entry into the unit (Crown submissions at [20]).

  2. The offender submitted that s 21A(2)(e) was not engaged in these circumstances, citing Gore v R [2010] NSWCCA 330; (2010) 208 A Crim R 353 at [100]-[101] (offender’s submissions at [30]).

  3. In my view, as the liability of the offender for manslaughter was based upon the existence of a joint criminal enterprise (see [55]ff above), the statutory aggravating factor does not apply because the fact that the offending was committed “in company” is an inherent feature of the offence: Tabbah v R [2019] NSWCCA 324 at [113]-[116]; Chandler v The Queen [2022] NSWCCA 124 at [26]-[27].

  4. The offender’s submissions also referred to other potential aggravating factors within s 21A(2) of the CSP Act – namely, that the offence was committed “in the home of the victim or any other person” (s 21A(2)(eb) of the CSP Act); that the offence “involved gratuitous cruelty” (s 21A(2)(f) of the CSP Act); that the offender “abused a position of trust or authority in relation to the victim” (s 21A(2)(k) of the CSP Act); and that the offence “involved … a series of criminal acts” (s 21A(2)(m) of the CSP Act) – and argued against their engagement and consideration in determining the appropriate sentence (offender’s submissions at [31]-[36]).

  5. Given the Crown did not raise any of these matters as being aggravating factors, I do not propose to address them or take them into account in determining the appropriate sentence.

  6. Further, notwithstanding the victim impact statements in this case (see [81]ff below), the Crown did not submit that a finding within s 21A(2)(g) of the CSP Act should be made.

Parity

  1. On 23 July 2024, Mr Turnbull pleaded guilty to being an accessory after the fact to manslaughter on the basis that, having become aware of the unlawful killing of Darcy by the offender and Mr Kwacz, he agreed to assist in (and was paid for) cleaning up the unit and disposing of the body and other material connected to Darcy’s death in an effort to prevent the offender and Mr Kwacz being lawfully apprehended for their involvement in the death (AF at [2], [9]). He was committed to sentence in the District Court following that plea.

  2. On 13 December 2024, Mr Turnbull was sentenced by his Honour Judge Brady SC to a non-parole period of two years with a balance of term of 16 months.

  3. Given the differences in the charges, the offender accepted that parity considerations were not relevant to the sentence to be imposed upon him (offender’s submissions at [78]).

Victim impact statements

  1. The Crown tendered victim impact statements from Karla Schafer, Darcy’s mother, and Jazmyn Schafer, Darcy’s sister.

  2. Each of them gave a heartfelt and moving account of the enduring impact of Darcy’s death upon them and their family, and the grief and pain they endure. It cannot have been easy for them to have read these statements in Court and they showed great courage in doing so.

  3. It is appropriate to take into account these statements on the basis that the harmful impact of Darcy’s death on his family is an aspect of harm done to the community: s 30E(3) of the CSP Act. I have approached the matter on this basis. As I have earlier noted, the Crown did not seek a finding that s 21A(2)(g) of the CSP Act was engaged by these statements.

  4. It is, at this point, important to acknowledge that the taking of Darcy Schafer-Turner’s life is a tragedy that has caused profound grief and sorrow to his family and those close to him. On behalf of the Court, I extend my sincere sympathy to them for their loss.

Subjective considerations

  1. The offender did not give evidence at the sentence hearing. A bundle of material, including some expert evidence and a letter of apology (‘Apology Letter’) was tendered on his behalf (Exhibit 1).

  2. The offender was born on 25 January 2001. He is currently 24 years of age and was 22 years of age at the time of the offending.

  3. The offender raised the following matters to be taken into account in determining the appropriate sentence.

The offending was not part of a planned or organised criminal activity: s 21A(3)(b) of the CSP Act

  1. The offender submitted that the offending was “essentially spontaneous” and, whilst accepting that there was “some level of prior agreement implicit in the facts”, argued that he was unaware of what actions would be undertaken by Mr Kwacz (offender’s submissions at [37]). The corollary of this submission appeared to be that these matters were mitigatory.

  2. The Crown, whilst accepting that “there [was] no evidence to suggest that the murder [sic] was pre-planned or part of an organised criminal activity”, nevertheless did not concede that the circumstances of the offending were mitigatory, submitting that whether “such a factor mitigates or aggravates the offence, or neither, depends on the circumstances” (Crown submissions at [22]).

  3. I do not accept the offender’s submissions. To be clear, I do not accept that the offending was “essentially spontaneous”, as was argued, nor that it is correct to characterise what occurred as merely involving “some level of prior agreement implicit in the facts”, as was also argued. On the contrary, the agreed facts indicate that the offender and Mr Kwacz believed that Darcy owed Mr Kwacz a drug debt of around $50,000 (AF at [20]) and, further, at the time Darcy attended the unit on the day of his death, the offender and Mr Kwacz “intended to overpower him and assault him in order to get him to agree to arrange to pay the drug debt that he owed [Mr] Kwacz” (AF at [21]), albeit that the offender did not know the means “by which [Mr] Kwacz would assault” Darcy.

Absence of any significant record of previous convictions and good character: ss 21A(3)(e) and 21A(3)(f) of the CSP Act

  1. The offender’s criminal history is confined to a driving offence for which he received a conviction under s 10A of the CSP Act. The offender submitted, and the Crown accepted, that he did not have any significant record of previous convictions (offender’s submissions at [38]). I accept that to be so.

  2. The offender also submitted that the absence of any significant criminal record of previous convictions, considered alongside his comprehensive character references, contained within Exhibit 1, both supported a finding that he was a person of good character (offender’s submissions at [39]). The Crown accepted that the offender “has previously been a person of good character”. I find that to be so.

  3. Accordingly, I have taken these matters into account when determining the appropriate sentence.

The early guilty plea: s 21A(3)(k) of the CSPAct

  1. The offender offered to plead guilty to manslaughter during the EAGP case conference timetable in the Local Court. The Crown did not accept that offer.

  2. The offender was due to stand trial on 2 June 2025 for the offence of murder. On 26 May 2025, the offender entered a plea of guilty to manslaughter, which was accepted by the Crown in full satisfaction of the indictment.

  3. The offender submits, and the Crown accepts, that he is entitled to a 25% discount on the sentence that he may otherwise have received, given the offer to which reference has been made: ss 25D(2)(a) and 25E(2) of the CSP Act.

  4. Given the above, the offender is entitled to a “sentencing discount for the utilitarian value of the guilty plea” of 25% in accordance with those provisions.

Remorse: s 21A(3)(i) of the CSP Act

  1. Remorse, as a mitigating factor, may only be taken into account if “the offender has provided evidence that he … has accepted responsibility for his … actions” and “the offender has acknowledged any injury, loss or damage caused by his … actions”: ss 21A(3)(i)(i) and 21A(3)(i)(ii) of the CSP Act.

  2. The offender submitted that his remorse had been demonstrated by the following matters: first, by his guilty plea (which I accept is some evidence of remorse: Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 at [22]), including the timing of when the offer to plead guilty was made; secondly, by his letter to the Court; thirdly, by statements made to family members and to the psychologist qualified to prepare a report for his sentence hearing; and, fourthly, by participating in custodial programs designed to facilitate his rehabilitation (offender’s submissions at [73]).

  3. I am persuaded that the offender is genuinely remorseful. This finding is principally based upon the offender's letter to the Court and its content which, I am satisfied, demonstrates that he has accepted responsibility for his actions (s 21A(3)(i)(i) of the CSP Act) and provides an acknowledgement by him of the “loss” and “damage” caused by his actions (s 21A(3)(i)(ii) of the CSP Act).

Unlikely to re-offend: s 21A(3)(g) of the CSP Act

  1. Having regard to the absence of any significant record of previous convictions, his previous good character, his expressions of remorse (which I have accepted are genuine: see [100] above) and his prospects of rehabilitation (see [103] below), I am satisfied the offender is unlikely to reoffend upon release.

  2. I note that, consistent with the above finding, the offender’s qualified forensic psychologist, Alison Cullen, who prepared a psychological assessment report dated 14 July 2025 (‘Cullen report’), expressed the opinion that the offender presented “with a low risk of reoffending” (Cullen report p 26). This was based upon the result from the actuarial assessment tool, the Level of Service Inventory – Revised, which is designed to identify an offender’s risk of reoffending (Cullen report p 16).

Rehabilitation prospects: s 21A(3)(h) of the CSP Act

  1. A mitigating factor to be taken into account in determining the appropriate sentence includes when an “offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise”: s 21A(3)(h) of the CSP Act.

  1. The offender submitted that “his prospects of rehabilitation upon his release are high” and that he “has good prospects for rehabilitation” (offender’s submissions at [40], [72]). The offender further submitted that the Court should find that he has “good prospects of rehabilitation” based upon three matters: first, his abstinence “from drugs and his mental health diagnoses”; secondly, his “genuine expressions of remorse”; and, thirdly, his “need for continuing treatment in the community” (offender’s submissions at [76]).

  2. The favourable finding that I have made about remorse is directly relevant to any consideration of rehabilitation and the offender’s prospects of being rehabilitated. That is because (genuine) remorse “is to be seen as a mitigating factor because it is a concomitant of rehabilitation”: Stojanovski v R [2013] NSWCCA 334 at [41]; see also Brzozowski v R [2023] NSWCCA 129 at [3]. Genuine remorse is thus a “very important element in the exercise of the sentencing discretion” because it “enhances prospects of rehabilitation and reduces the need for specific deterrence”: Barbaro v The Queen [2012] VSCA 288; (2012) 226 A Crim R 354 at [39].

  3. The following matters also bear upon the prospects of the offender’s rehabilitation – which I accept and find are good. First, the offender reported to Ms Cullen that he has remained abstinent from “all illicit drugs since his arrest in May 2023” and also expressed to her that he has “no intention to resume … [taking] drugs … upon his release from custody” (Cullen report p 9). Secondly, the offender has made good use of his time in custody, evidenced by his consistent employment and engagement in the various programs offered. Thirdly, whilst in custody, the offender has sought psychological assistance and has expressed a desire to continue with psychological support upon his release. Fourthly, the offender has strong family support. Fifthly, the offender’s relative youth.

  4. The finding I have made about rehabilitation also informs my assessment of specific deterrence which, in line with the authorities referred to, has been moderated.

The offender’s upbringing, relative youth, addiction and mental health issues

  1. The offender made wide-ranging, and partly overlapping, submissions across these topics. By way of summary, he argued that:

  1. his “disrupted upbringing and mental health conditions in combination” would operate to mitigate his moral culpability and reduce the significance of general deterrence (offender’s submissions at [49]);

  2. his age, and relative youth, was “a matter that appropriately [may] be taken into account” across a range of sentencing considerations and purposes (offender’s submissions at [51]-[53]);

  3. his addiction issues “can properly be taken into account by the Court when considering the [offender’s] moral culpability” (offender’s submissions at [56]-[58]); and

  4. he has been diagnosed with a number of mental health conditions – Dependent Personality Disorder (or ‘DPD’), Post-Traumatic Stress Disorder (‘PTSD’) and Persistent Depressive Disorder (or ‘PDD’) – and submitted that his DPD was relevant to his “moral culpability for the offending conduct” and, further, that where there is a “nexus” between that condition and the offending, the existence of the condition “may indeed be of some assistance in an assessment of the overall objective seriousness of the offence” (offender’s submissions at [60]-[69]).

The offender’s upbringing

  1. The offender submitted that his upbringing was “marred by disruption, lack of stable parental figures, emotional abuse and early introduction to alcohol, drugs and gambling” and that he was “born to a 17-year-old father and in the absence of a stable maternal figure, was raised intermittently by different caregivers, including his paternal grandmother” (offender’s submissions at [45]). As earlier noted, the offender ultimately submitted that his “disrupted upbringing and mental health conditions in combination” should operate to mitigate his moral culpability and reduce the significance of general deterrence (offender’s submissions at [49]).

  2. The basis for these submissions derives from a part of the report from Ms Cullen where it was suggested that the offender had “attachment disruptions to primary caregivers during his critical developmental years”; that from around five years of age, the offender “secured stability in the care of his father”, albeit that his father had apparent issues with “unresolved grief, alcoholism, and gambling behaviours”; and that verbal and emotional abuse from his father “led to inconsistent caregiving and subjugation of [the offender’s] emotional needs” (Cullen report at [5.2]).

  3. The offender’s mental health conditions are dealt with separately (see [125] below). What follows addresses the offender’s “disrupted upbringing” submissions, although before doing so, two matters should be noted. The first is that the offender, in advancing this submission, did not specifically raise the decision in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’) but, somewhat unusually, cited the decision in Ohanian v R [2017] NSWCCA 268 which did. The second is that the offender’s submissions were premised upon the notion that he had a “disrupted upbringing” without identifying precisely what was involved in that concept, nor how it engaged the principles in Bugmy.

  4. It is well-established that “full weight” should be given to an offender’s deprived background in every sentencing decision given the effects of “profound childhood deprivation do not diminish with the passage of time and repeated offending”: Bugmy at [44]. An assessment of the offender’s moral culpability includes a consideration of these matters: Bugmy at [40], [44]; Paterson at [31].

  5. I am unpersuaded that the offender’s background admits to the characterisation suggested by him, nor am I satisfied that it was deprived (or even approaching this), or that there was “social disadvantage” in the manner contemplated by the decision in Bugmy. That is for the following reasons.

  6. First, I am unable to accept that, as argued, the offender had a lack of “stable parental figures” and was “raised intermittently by different caregivers” or, as seems to be implied in Ms Cullen’s report, that it was apparently only from around five years of age that the offender “secured stability in the care of his father”. Rather, the offender remained in the care of his father and paternal grandmother until he was two years of age, when his father relocated to Sydney to undertake work. The offender, until around age four and a half, remained in the care of his grandmother, at which time they both relocated to Sydney. At around this time, the offender’s father had met his current partner, the offender’s stepmother, and, from around mid-2007, the offender lived with his father and stepmother.

  7. Secondly, although the offender’s mother has not played a part in his life, his father, grandmother, stepmother and, to a lesser degree, his aunts and uncles, have, I am satisfied, provided stable parental figures to him. Put a little differently, whilst the history in the report from Ms Cullen, relied upon by the offender, details a child born to young parents and a childhood with an absent mother, the report also details strong family ties with his father and members of his paternal family, as the Crown submitted. It should also be noted that, in his Apology Letter to the Court, the offender confirmed that his grandmother, “since the day [he] was born, assumed a parental role” (Apology Letter p 3).

  8. Thirdly, I do not accept that there was any significant “emotional [or] verbal” abuse, as Ms Cullen suggested at [5.2] of her report, perpetrated upon the offender by his father. It is perhaps pertinent to observe, in this respect, that although Ms Cullen interviewed the offender’s father, she did not canvass this issue at all with him. Nor, I add, was any interview conducted with the offender’s stepmother. I am not prepared to act on this “opinion”, such as it is, in these circumstances, nor given what I regard as the absence of any clear explanation for why the interactions that the offender had with his father should be characterised in the way Ms Cullen construed them so as to permit critical analysis.

  9. Fourthly, the offender did not seek to address the principles in Bugmy, nor to identify how the suggested “disrupted upbringing” was somehow within them. Undoubtedly, a deprived upbringing (or “social disadvantage”), in the sense described in Bugmy, involves questions of fact and degree. However, as I have earlier found, I am far from persuaded that the present situation admits to either description, or anything approaching them.

The offender’s youth

  1. The offender made a number of additional general submissions about how his “relative youth [as] an adult offender” may impact upon the sentencing discretion. For example, citing Ngo v The Queen [2018] NSWCCA 296 at [91], the offender observed that this factor may impact upon the sentencing discretion in several ways, including the assessment of the objective gravity of an offence, the prospects of rehabilitation, general deterrence and special circumstances (offender’s submissions at [52]). Additionally, by way of further example, the offender also noted, citing several cases, such as IE v R [2008] NSWCCA 70; (2008) 183 A Crim R 150 at [19]-[21] (‘IE’), that “[a]n offender’s youth may also impact upon the assessment of the offender’s moral culpability” (offender’s submissions at [53]).

  2. No specific submissions were, however, made relating to how or why these general submissions apply to the offender’s case.

  3. The terms of s 21A(3)(h) of the CSP Act specifically contemplate a consideration of an offender’s age (in the context of whether the offender has good prospects of rehabilitation) when determining the appropriate sentence. I have dealt with, and accepted, the offender’s relative youth as a fact that informs, favourable to him, his assessed prospects of rehabilitation and the overall sentence. Relatedly, and again favourably to the offender, I have taken into account his “relative youth” and moderated (to a degree) the need for general and specific deterrence and retribution: KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22]-[23] (‘KT’). However, to the extent that the general submission made sought to suggest as much, I am unpersuaded that the offender’s relative youth (or “immaturity”) is a factor in the commission of the offence such that the criminality was in some way lessened: KT at [23].

  4. To the extent that the general submission raised the offender’s youth as a ground to reduce his moral culpability, again, no specific submissions were advanced to explain and support why such a finding should be made. I am not, in those circumstances, prepared to make any adjustment to the offender’s moral culpability based simply upon the suggestion of “relative youth”.

The offender’s addiction issues

  1. The offender submitted that his “drug use bears relevance as it forms part of a broader pattern of maladaptive coping linked to his underlying psychological vulnerabilities and unresolved trauma” (offender’s submissions at [56]). The offender also submitted that his “early foray into drug use, alcohol and gambling” has impacted the direction of his life, leading to “criminal associations and this offending”, with the consequence that they can “properly be taken into account” when considering his moral culpability (offender’s submissions at [58]).

  2. Commonly, a finding that an offender’s moral culpability is reduced occurs where there is a finding of profound childhood deprivation or a finding of a mental illness or a cognitive impairment: Paterson at [31]. I have, elsewhere, dealt with the offender’s mental health conditions and his submissions about his upbringing.

  3. The offender relied upon some of the history contained in the report from Ms Cullen as demonstrating his “trajectory of … polysubstance misuse and gambling behaviours” (offender’s submissions at [57]; Cullen report at [1.4]). This part of her report contains the offender’s self-report about his alcohol, drug and gambling issues. Ms Cullen does not, in this part of the report, advance any opinion about these matters being, for example, referable to a pattern of maladaptive coping, nor is any such opinion expressed (or clearly expressed) by her in her concluding remarks. To the extent that any inference is available from this part of the report, it tended to suggest that the offender’s use of alcohol and drugs was social. I am unpersuaded that any of the matters here, on their own, provide a basis to find that the offender’s moral culpability is reduced, as was argued.

The offender’s mental health conditions

  1. As earlier noted, the offender submitted that he has been diagnosed with three mental health conditions – DPD, PTSD and PDD – and that one or more of those conditions were relevant because, in relation to the DPD specifically, the offender submitted that this contributed to the offending and, further, when considering the impact of all three conditions together, he submitted that his time in custody would be more onerous (offender’s submissions at [60], [62], [65], [70](iv)).

  2. The existence of a mental illness or disorder can be relevant to the sentencing exercise in a range of ways. The principles to be applied when sentencing were summarised in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (‘De La Rosa’) as follows:

“…

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

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

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

•  It may reduce or eliminate the significance of specific deterrence …

•  Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence … ” (Citations omitted)

  1. The offender submitted that his DPD had “particular relevance to the offending conduct” because it “significantly impaired” the offender’s capacity to exercise independent judgment and resist pressure from Mr Kwacz (offender’s submissions at [62], [65]). The essential submission put was that there was a “nexus” to that condition and the offending – that is, the condition “directly … contributed to the commission of the offence” (offender’s submissions at [66], [68]). This submission seeks to engage the first principle from De La Rosa.

  2. This argument rests upon the opinion of Ms Cullen, the offender submitting that she drew “a direct nexus between the offending conduct” and the existence of the DPD (offender’s submissions at [68]; Cullen report at [5.7]). That disorder, according to Ms Cullen and the definition contained within the DSM-5-TR, is referable to a “pervasive and excessive need to be taken care of that leads to submissive and clinging behaviour and fears of separation” (Cullen report at [5.5]). The presence of DPD is indicated by reference to the existence of five or more of the diagnostic criteria in the DSM-5-TR (Cullen report at [5.5]).

  3. The opinion of Ms Cullen was that the existence of that disorder, and its features “materially contributed to [the offender’s] compliance … which ultimately resulted in the index offence and accordingly [that] there [was] a direct nexus between his mental health condition and the offence” (Cullen report at [5.7]).

  4. I do not accept this opinion nor, to be clear, do I accept there is any nexus between the DPD and the offending, as was argued, for the following reasons.

  5. First, in my view, the opinion expressed by Ms Cullen fails to provide any adequate reasoning for why the existence of that disorder “resulted in the index offence”. That is, there is no explanation for why the particular conduct of the offender in fact was a manifestation of that disorder, and thereby contributed to the offending: the opinion, in my view, lacked the “necessary scientific criteria” to enable an independent assessment of it: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [59], [87]; Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29 at [7].

  6. Secondly, to the extent that the relevant conduct considered by Ms Cullen may be drawn from the offender’s account to her about the offending, at no point did she identify what part of that account was consistent with the presence of that disorder contributing in any way to the offending, nor why. For example, the offender reported to Ms Cullen that he did not “know why [he] did it” and that it “all happened so fast” (Cullen report at [4.4]). Again, like the first matter, the failure to explain and engage with the particular circumstances prevent, in my view, proper evaluation of the validity of this opinion.

  7. Thirdly, to the extent the offender submitted that he had a “subsidiary role” in the offending; that the “comments made by him” to Mr Kwacz during the assault; and that remaining in the apartment in the days afterwards were also supportive of the suggested “nexus”, I do not accept his submission (offender’s submissions at [67]). It is sufficient to note that Ms Cullen did not, at least explicitly, endorse these matters as demonstrating this. Further, by way of example, an obvious explanation, or at least an equally plausible one, for the offender’s “subsidiary role” in the assault upon Darcy was the fact that it was Mr Kwacz who believed that he owed him $50,000; that is, it was Mr Kwacz who was highly motivated to confront Darcy in an attempt to recover that amount of money.

  8. The offender next submitted that the existence of his mental health conditions meant that his experience in custody would be “more onerous” (offender’s submissions at [70](iv)).

  9. This submission, which seeks to engage the third principle from De La Rosa, relied upon the opinion expressed by Ms Cullen to the effect that the offender’s “comorbid personality disorders [would be] undoubtedly perpetuated whilst incarcerated” and that his DPD “leaves him vulnerable to exploitation and harm while in gaol” (Cullen report at [5.10]).

  10. I am prepared to find that, given these conditions, his time in custody will, to a degree, weigh more heavily upon him, and have factored this into the length of the sentence. I am also prepared, given their existence and consistent with De La Rosa, to moderate, to a degree, both general and specific deterrence. Nevertheless, as the Crown submitted, each of these matters remain important sentencing considerations (further Crown submissions at [8]).

Onerous conditions in custody

  1. The offender submitted that the Court should take into account the “onerous nature of [his] custody”, emphasising that he “is serving his first term of imprisonment and at a very young age”; that he has been assaulted whilst in custody (the detail of which was contained in the records from Corrective Services and Justice Health, which were in evidence); that he has “experienced significant weight loss in the custodial setting associated with heightened stress and anxiety”; and his “mental health conditions” (offender’s submissions at [70]).

  2. As has been noted elsewhere, I have taken into account the fact that the offender is serving his first term of imprisonment and his age when dealing with his prospects of rehabilitation and, as I later explain, when assessing special circumstances. I do not propose to take them into account by way of further reduction in the head sentence: to do so would not only involve double counting but, importantly, result in a disproportionately lenient sentence. Further, I have earlier accepted that his mental health conditions weigh more heavily upon him and have factored this into the sentence (see [136] above).

  1. The Crown accepted that the fact the offender was assaulted was relevant to the offender’s overall submission about the “nature of [his] custody” and I propose to take it into account when fixing the overall sentence.

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Special circumstances

  1. The offender submitted that there were special circumstances that warranted a variation in the standard ratio. The offender relied upon three matters and their combination to support the making of that finding – namely, that it is the offender’s first time in custody; his relative youth; and because he would benefit from a longer period of supervision (offender’s submissions at [81]-[82]).

  2. The Crown did “not wish to be heard against a finding of special circumstances”, submitting that it was permissible to take into account the “relative youth of the offender” and the fact that this was the offender’s “first time in custody” (Crown submissions at [28]). Thus, whilst the fact this is the offender's first time in custody is a doubtful basis upon which to make a finding of special circumstances on its own (see, for example, Collier v R [2012] NSWCCA 213 at [36]; Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353 at [79]), with other factors it may be sufficient: Sausa v R [2023] NSWCCA 95 at [38].

  3. The Crown also accepted that, in addition to the two factors just identified, a further factor may support a finding of special circumstances – namely, the offender’s “need for continued supervision and support” when eventually released to deal with his “entrenched gambling and addiction issues” (further Crown submissions at [10]).

  4. In the circumstances, including the Crown’s position, I am satisfied this is an appropriate case in which to vary the statutory ratio on the basis of special circumstances – given the combination of this being the offender’s first time in custody; his relative youth; and the need for him to obtain rehabilitation to address his addiction issues whilst on parole.

Other relevant sentencing matters

  1. The offender submitted, and the Crown accepted, that the offender’s sentence should be backdated to commence on 15 May 2023 (the date when he entered custody). The offender’s sentence will commence on that date: ss 24(a) and 47(3) of the CSP Act.

  2. The offender made available a “schedule of cases” involving sentences for manslaughter. However, he submitted that “significant caution should be used in relying” on them to set an appropriate range given the protean nature of the offence (offender’s submissions at [86]). That submission, which accords with authority (see R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 at [133]-[134]), is one that I accept. I have not found the cases to be of any particular assistance given the range of situations in which the offence can be committed.

Sentence and orders

  1. I make the following orders:

  1. The offender, Zachary Fraser, is convicted of the manslaughter of Darcy Schafer-Turner.

  2. For the manslaughter of Darcy Schafer-Turner, I impose a sentence of imprisonment consisting of a non-parole period of 4 years and 2 months, commencing from 15 May 2023, and a head sentence of 6 years and 6 months. The offender will become eligible to be released on parole on 14 July 2027. This term has been reduced by a discount of 25 per cent for the plea of guilty [REDACTED].

  3. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), I advise you of the existence of that Act and the fact that it applies to you and to this offence. I direct your legal advisers to explain the significance of this fact to you.

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Decision last updated: 16 October 2025

Most Recent Citation
Cases Cited

40

Statutory Material Cited

3

Barbaro v The Queen [2012] VSCA 288
Brzozowski v R [2023] NSWCCA 129
Bugmy v The Queen [2013] HCA 37