R v Gale

[2020] NSWSC 808

Supreme Court

New South Wales

Medium Neutral Citation:

R v Gale [2020] NSWSC 808

Hearing dates:

14 April 2020

Decision date:

26 June 2020

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

The offender is sentenced to a term of imprisonment comprising a non-parole period of 8 years, and a balance of term of 4 years. The total sentence is 12 years, commencing from 8 May 2018 and expiring on 7 May 2030. The offender will become eligible for possible release on parole when the non-parole period expires on 7 May 2026.

Catchwords:

CRIMINAL LAW – sentence – where offender originally charged with murder – where offender pleaded guilty to manslaughter on the basis of excessive self-defence – where minimal evidence of remorse – where prospects of rehabilitation poor – where actions were without provocation – where offender had a troubled upbringing

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Summary Offences Act 1988 (NSW)

Cases Cited:

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

R v Wood (2014) 244 A Crim R 501; [2014] NSWCCA 184

Smith v R [2015] NSWCCA 193

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category:

Sentence

Parties:

Regina
Michael Graham Gale (Offender)

Representation:

Counsel:
M G Fox (Crown)
P D Young SC; S Fraser (Offender)

Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Morrisons Law Group (Offender)

File Number(s):

2018/140832

Judgment

1. HIS HONOUR: The offender, Michael Gale, was arrested and charged on 8 May 2018 with the murder of the deceased, Steve Edwards, on 4 May 2018 at Wollongong.

2. During the committal, the offender made a formal offer to plead guilty to a charge of manslaughter by reason of excessive self-defence pursuant to s 421 of the Crimes Act 1900 (NSW). The offer was rejected and the offender was committed to this Court for trial. He was arraigned on 2 August 2019 and the trial was set down to commence on Monday 3 February 2020, with an estimate of three weeks. Following further discussions between the parties, on that date, the Crown presented a fresh indictment which included an alternative count for manslaughter to which the offender pleaded guilty and which the Crown accepted in full satisfaction of the indictment.

Background to the offence and plea

3. An agreed statement of facts (“the agreed facts”) was tendered by the Crown on the sentencing hearing, which is to the following effect.

4. At the time of the offence, the offender and the deceased were aged 52 and 39 respectively. They had a history of animosity towards each other that dated back to January 2017, when the deceased had assaulted an elderly woman. He had been charged, and was convicted and sentenced for the assault at Wollongong Local Court on 15 August 2017.

5. On the day of the offence for which the offender is being sentenced, the two men arrived independently of each other at a methadone clinic in Wollongong shortly before it was due to open, which was at 6:00am. The deceased arrived first, accompanied by two friends, Deborah Hunter and Karen Lynn, and waited outside with other patients.

6. The offender arrived at the clinic shortly afterwards on his pushbike, dismounted and approached the deceased. A verbal altercation between the two men ensued. The offender said to the deceased, “This is for hitting the old lady”. A physical altercation then occurred, during which the offender punched the deceased once to the face. Ms Hunter stood between the two men and then moved away. The offender then kicked the deceased in the area of his abdomen and the upper side of his chest. The agreed facts continue:

“10.   In the course of the altercation, the Offender heard a noise, saw a knife on the ground and, believing it had belonged to the deceased, picked it up. The Offender held the knife in his hand and stabbed the deceased once, causing a wound to the chest of the deceased. As a result of the stabbing the deceased fell to the ground on his side.

11.   The deceased[’s] wound began to bleed profusely. The Offender walked away and was heard saying, ‘Dog. He was just a fucking dog, who cares.’ LYNN ran towards the Offender and yelled, ‘What the fuck did you do that for?’ HUNTER also confronted the Offender. The offender pushed LYNN to the left side of her face. LYNN stumbled backwards but remained on her feet. A bystander … then intervened, and the parties separated.

…

16.   Neither the Offender nor the deceased were observed to be carrying or producing a knife, and one was not located at the scene. The weapon used was never recovered.”

7. The offender was described as “looking ‘white’ following the incident”. He mounted his bike and rode away. Ms Lynn began performing cardiopulmonary resuscitation (“CPR”) on the deceased. Police arrived soon after and continued CPR on the deceased until an ambulance arrived. The deceased was conveyed to Wollongong Hospital where, following further unsuccessful attempts at resuscitation, he was pronounced dead.

8. The offender rode his bicycle to the house of a friend, David Walsh, arriving at about 6:10am. The agreed facts state:

“19.   … The Offender was agitated and told Walsh what had just occurred at the Methadone Clinic. The Offender claimed that he and the deceased were arguing and pushing and shoving each other. The Offender claimed that he became aware of something being dropped, picked it up and hit the deceased with it. The Offender left shortly after and David Walsh made some handwritten notes of the conversation he had with the Offender.”

9. Four days later, on the afternoon of 8 May 2018, the offender contacted police and arranged to attend Wollongong Police Station, which he did shortly afterwards.

10. As to the basis of the plea and its acceptance by the Crown, the agreed facts state:

“25.   The basis of the guilty plea to Manslaughter is that the Offender honestly believed he was acting in self-defence when he stabbed the deceased however that his response in the circumstances was not a reasonable one. The Offender intended to inflict grievous bodily harm when he stabbed the deceased …”

11. An autopsy report, prepared by forensic pathologist Dr Sarita Maistry on 17 December 2018, identified the direct cause of the deceased’s death as the stab wound to his chest. Dr Maistry described the wound as being “between the second and third ribs anteriorly on the right”. The wound was described as being “19mm in size and 21mm with edges opposed. The depth of the wound was determined to be 25mm, penetrating the ascending aorta”.

Victim impact statements

12. Victim impact statements were tendered by the Crown at the sentence hearing by the deceased’s mother, Noelene McKeirnan; the deceased’s sister and only sibling, Teresa Edwards; and the deceased’s niece, Kaleah Edwards-Harvey. The three women read their statements with dignity and courage in spite of the circumstances, and conveyed a sense of the pain that they continue to endure from the loss of their son, brother and uncle, whom they dearly loved. I note from Ms McKeirnan’s statement that she is now bringing up the deceased’s young son. I express my sympathy to each of them and to the other members of the deceased’s family.

The offender’s criminal history

13. The offender has a lengthy criminal history. In 1983, when aged 17, he was fined for offences that included break, enter and steal; two counts of assault police officer; two counts of malicious injury; and one count of resist arrest. The less-serious offences of which he has been convicted since then include further offences of break, enter and steal; multiple offences of escape lawful custody; assault police; larceny; goods in custody; offensive behaviour (being language); breach of parole and failing to appear; as well as driving offences, including driving at a dangerous speed. His drug offences include possession and supply of a prohibited drug.

14. The offender’s first conviction resulting in a prison sentence was for an armed robbery committed in 1986, when he was aged 20, for which he received a sentence of 5 years and 6 months imprisonment with a non-parole period of 2 years and 6 months, of which he served a significant period in custody. In 1990, when aged 24, whilst on parole for the armed robbery sentence, he was sentenced for the offence of assault with intent to rob to a minimum term of 4 years’ imprisonment with an additional term of 1 year and 6 months.

15. Of particular relevance to the sentencing of the offender in respect of this offence, pursuant to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW), is a prior offence of serious personal violence, as defined at s 4 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). In 2007, when he was aged 41, the offender was sentenced for maliciously wounding a person with intent to inflict grievous bodily harm, pursuant to s 33 of the Crimes Act, to 8 years’ imprisonment with a non-parole period of 5 years. The police facts, which have been tendered without objection, were to the effect that he and the victim resided in different parts of a guest house complex. In 2006, during the course of an argument in the victim’s room and whilst the victim had his back to him, the offender stabbed him multiple times to the head with a knife. They then struggled and the victim broke free and ran, but the offender gave chase and stabbed the victim in his chest and left arm.

16. In an electronically-recorded interview, the offender explained that he and the victim had been in conflict over various matters, including drugs. The police facts relevantly state:

“During the afternoon [the offender] obtained a small black handled ‘kitchen’ style knife from a friend’s room inside the premises, before obtaining a further knife from his bedroom. [The offender] placed both knives in the rear of his pants and also grabbed a schooner glass, before confronting the victim who was inside his bedroom. At this time [the offender] claimed that his ‘brain snapped’ and he just attacked him.”

17. The victim suffered two lacerations to the scalp, each about 4cm in length, a punctured left lung and multiple significant lacerations to his left arm. A disturbing similarity with this offence is that the victim had not initiated the encounter.

18. The offender had committed another prior offence involving the use of a knife. In 1996, when aged 31, he was sentenced for the offences of break, enter and steal and using a weapon to avoid apprehension, to a minimum term of 18 months’ imprisonment with an additional term of 2 years’ imprisonment. The weapon was a knife about 15cm in length, which he had taken from the kitchen of the house that he had broken into and then wielded to scare police outside, in a failed effort to thwart their attempts to arrest him and a co-offender.

19. In 2016, the offender was convicted of possessing a knife in a public place without a reasonable excuse pursuant to s 11C of the Summary Offences Act 1988 (NSW). At about 2:55am on 11 July 2016, police spoke to the offender at a service station and informed him that he was about to be searched. He offered that he had a knife, which he handed over. It was a 15cm serrated kitchen knife and sheath, which he had in the front of his shorts, behind his waistband. He explained that he was carrying the knife “for protection”.

20. I also note that on 17 August 2018, when he was three months into his remand awaiting trial for this matter, the offender was subjected to a pat-down search by Corrective Services NSW officers and was found to have a “gaol made weapon”, described as “made from metal, approximately 15cm long, sharpened at one end and had cloth wrapped on the other end,” which is commonly known in prison parlance as a “shiv”. His punishment was the loss of contact visits and buy-ups over an extended period.

The seriousness of the offence

21. The maximum penalty for the offence of manslaughter is imprisonment for 25 years. Unsurprisingly, given the wide range of circumstances and degrees of seriousness that the offence encompasses, it does not have a standard non-parole period.

22. Having regard to the relatively shallow depth of the wound and the fact that the deceased was stabbed once, consistently with the agreed facts and the basis of the plea being accepted by the Crown, I find that the offender’s intention was to cause grievous bodily harm to the deceased and not to kill him.

23. The Crown’s acceptance of the offender’s guilty plea indicates that it accepts that the offender believed that stabbing the deceased was necessary in order to defend himself. Equally, by his plea, the offender accepts that his response was unreasonable in the circumstances as he perceived them.

24. The partial defence of excessive self-defence to a charge of murder is made available by s 421(1) of the Crimes Act. The elements of the defence are as follows:

“421   Self-defence—excessive force that inflicts death

(1)   This section applies if—

(a)   the person uses force that involves the infliction of death, and

(b)   the conduct is not a reasonable response in the circumstances as he or she perceives them,

but the person believes the conduct is necessary—

(c)   to defend himself or herself or another person, or

(d)   to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.”

25. Beyond those factors, however, it is necessary to determine the circumstances at the relevant time as the offender perceived them to be, and to evaluate the degree to which the offender’s conduct departed from what would have been a reasonable response to those perceived circumstances: see Smith v R [2015] NSWCCA 193 at [36] and [45] per Simpson JA (Leeming JA and Hamill J agreeing). The “conduct” in this case is the stabbing of the deceased.

26. The only material concerning the circumstances as the offender perceived them to be at the time of the offence, is the agreed facts and a report by Anita Duffy, forensic psychologist, to the extent that it throws some light on why the offender may have reacted as he did when he saw the knife.

27. Ms Duffy had a copy of the statement of agreed facts and the offender’s criminal history. She administered the Millon Clinical Multiaxial Inventory – III to the offender, which she described as:

“… a comprehensive personality questionnaire comprising the measure of basic personality characteristics, more severe personality pathology as well as a number of clinical symptoms more transient and reactive to current circumstances.”

28. Ms Duffy stated as follows:

“Across the basic personality scales [the offender] achieved a highly significant result on the Schizoid scale. The Avoidant scale score lay just below significance. On measures of more severe personality pathology suggesting personality disorders, he scored just within significance on the Paranoid measure.”

29. On the basis of the questionnaire results, Ms Duffy found that the offender:

“… may perceive innocuous events as possible sources of harm or threat. He feels in frequent danger and consequently can be easily irritated, touchy and hostile.

…

He may experience tension, difficulty relaxing and be apprehensive and nervous. He may be hypervigilant to threat and have a highly sensitive startle response.”

30. Ms Duffy concluded that the offender:

“… [had] symptoms of anxiety disorder and concomitant sensitivity to, and fears of, threat, intimidation or other perceptions of personal infringement on his autonomy and safety.”

31. Ms Duffy’s finding on the paranoid measure, and her observation that the offender may regard innocuous events as possible sources of harm or threat, are consistent with the offender concluding that the deceased had been armed with a knife and had subsequently dropped it. The offender therefore apprehended an immediate threat to his safety and responded by quickly stabbing the deceased, intending to seriously injure him in order to protect himself.

32. In relation to the second issue, the reasonableness of the offender’s conduct is to be measured against the circumstances as he perceived them to be: see Smith at [56]. Accepting those circumstances, from the point in time that the offender saw the knife on the ground, there were options available to him other than the conduct he adopted, ranging from simply kicking or throwing the knife away or walking away from the confrontation, to brandishing or threatening to use the knife, rather than stabbing the deceased with it. In short, I find that the offender’s use of the knife in response to the perceived threat that he faced was unreasonable, to the point of being grossly disproportionate.

33. The offender’s reaction to the discovery of the knife aside, the agreed facts disclose significant aggravating factors. The offender’s actions were without provocation. He initiated and then escalated the physical confrontation, which was in a public place and in the presence of others. He walked over to the deceased, spoke to and then yelled at him, threatened him and then punched him to the face. Ms Hunter’s intervention provided an opportunity for the offender to take stock and re-consider the situation. Instead, after she moved away, he kicked the deceased to his torso and upper chest. The part of the body where the offender stabbed the deceased is particularly vulnerable to serious harm or death by the application of such a weapon.

34. I take into account, in favour of the offender, that there was no element of planning involved, allowing him the benefit of the statutory mitigating factor of s 21A(3)(b) of the Crimes (Sentencing Procedure) Act. He was unaware that the deceased would be at the methadone clinic; his confrontation with the deceased was spontaneous. He had not brought the knife with him and he was unaware of it until what could only have been a matter of seconds before he used it against the deceased. Until that point, the incident was a physical confrontation without weapons. His decision to pick the knife up and stab the deceased was made in the heat of the moment and in a brief time-frame.

35. Having stabbed the deceased, as I have already noted, the offender made a comment for the benefit of those present that can only be described as callous, even assuming, as I find likely to be the case, that he did not realise at that time that the stab wound he had inflicted on the deceased would be fatal.

36. Counsel for the offender has submitted that the gravity of the offence is “below the middle of the range of excessive self-defence murder cases”. I cannot agree with that proposition, particularly in the absence of any significant contributory behaviour by the deceased. In my opinion, in terms of the range of seriousness for the crime of manslaughter on the basis of excessive self-defence, this is a particularly egregious example, which I place well above mid-range.

37. I note the reference in the agreed facts to the offender’s attack being motivated by the deceased’s assault of an elderly woman in 2017. The agreed facts also suggest that the deceased was a participant at some level in the confrontation, but no specific act of physical violence or threat is attributed to him. Although there was no submission to the contrary, and in order to avoid any doubt, I find that there was no provocation by the deceased: s 21A(3)(c) of the Crimes (Sentencing Procedure) Act.

The offender’s subjective circumstances

38. The offender accepted responsibility at an early stage in proceedings, although not immediately. He is now aged 54. Having regard to the offender’s criminal history, it is unsurprising that he had an unfortunate upbringing. A clinical assessment by Ms Duffy was tendered on his behalf, which provides a limited history from the offender, and is to the following effect. The offender’s parents separated when he was a child. He and his older sister thereafter lived with their father, who discouraged any further contact by them with their mother. His father, who was a heavy drinker, physically abused the offender, although the offender has declined to give any detail of this. At high school, he was in the lowest-ranked classes, prompting fellow students to label him a “dummy”. He frequently had to physically defend himself from bullying. He left home during year 10, aged 16, and became homeless. By then, he had developed an insular lifestyle which, it seems, continued thereafter, with two exceptions. At one point, he was in a relationship for about two years, which produced a child. His daughter is now aged 25. He did not see her until she was 18 months old, and had no further contact with her until she was an adult. He has rejected her attempts to maintain contact.

38. At the time of his arrest in 2018, the offender was in a relationship. He told Ms Duffy that he ended it, against his partner’s wishes, in the belief that it was not fair to her now that he is back in prison. Tendered on behalf of the offender was a letter by this woman, who states that they have been in an “on off” relationship for a period of about five years. In that time, she found him to be unwilling to talk about his upbringing, being “closed off about what happened to him as a child”. He did refer to his father being very strict and physically abusive towards him, and putting him down verbally. He felt as if he had not been wanted by his parents. His former partner described the offender’s positive attempts to get his life back on track prior to his arrest, which included him successfully being on the methadone program, setting up a home with her and her children and, on a few occasions, engaging in employment.

39. The offender’s former partner had dropped the offender off at the police station when he was arrested. She visited him in prison not long after. The next time she visited, she was accompanied by his sister and daughter, but he would only see her and explained that he did not want further visits from her or his family and to “let him deal with the life in gaol he now has”. She explained that she believed this was the way he dealt with “difficult things”, and he wanted to spare them the grief of watching him trying to cope with life in prison. In spite of his rejection of her, she stated that she will stand by him and do all she can to support him on his eventual release from custody.

40. The offender reported to Ms Duffy that by his mid-teens, he was using drugs. He was introduced to heroin at age 16 and became addicted, which motivated much of his offending behaviour thereafter. He had partaken in residential and non-residential drug rehabilitation programs without lasting success. During the offender’s most recent prison sentence, which was for the malicious wound offence and from which he was released seven years before this offence, he decided to give up heroin. He went on the methadone program and has not relapsed since. The offender has been on the Disability Support Pension since his release from prison in 2011. Although he was not offence-free in that seven-year period, those offences warranted non-custodial sentences and I accept that, for him, he was making good progress until the commission of this offence.

41. Ms Duffy continued:

“There are indications of complex post-traumatic stress disorder [PTSD] emerging from his childhood experiences such that he could not acquire self soothing and emotional regulation strategies other than the use of heroin as his means of numbing feelings.”

43. Ms Duffy noted that the offender’s anxiety disorder and PTSD could be elevated by the violence endemic in the prison environment, leading to hypervigilance to threats from fellow inmates. He had been in fights where he was “king hit and iron barred” and had lost consciousness. She referred to a study that suggests that the experience of prison violence can have a sustained harmful psychological effect well beyond release from custody. In relation to this offence, she stated:

“[The offender’s] complex PTSD, with heightened reactivity and hypervigilance to threat, the experience of past abuse and violence, especially in the prison environment and poor coping mechanisms for dealing with conflict and negative emotions, were contributory factors in the commission of the offence. He tended to isolate himself to protect himself and let very few people into his life due to his level of mistrust. He has few skills other than avoidance to moderate negative emotions. When people intruded into his space, such as in the altercation with the deceased, he had difficulty managing this confrontation and reacted without thinking through the consequences.”

44. I accept Ms Duffy’s analysis that the offender’s psychological profile, as shaped by his negative life experiences, and his poor ability to regulate negative emotions, were contributory factors in the commission of the offence. However, it was the offender who intruded into the space of the deceased, not the reverse, which, when coupled with the words he uttered before physically assaulting the deceased, reflects an intention on his part to initiate a violent encounter with the deceased.

Remorse

45. The offender’s callous remarks immediately after the attack, his physically aggressive response when asked by Ms Lynn why he had attacked the deceased, and his departure from the scene rather than assisting the deceased who had fallen to the ground and was bleeding profusely, establish that any feelings of remorse were not immediately felt. Ms Duffy noted that the offender:

“… expressed regret over his part in the offence and for causing the death of the man …

[The offender] was visibly distressed when discussing the events surrounding the offence and said that he felt very bad that someone had died.”

46. Making an allowance for the offender being a person who has difficulty expressing his emotions, I nevertheless find that he is only minimally remorseful.

Bugmy submission

47. Counsel for the offender has submitted that, for the reasons set out by the majority in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, the offender’s moral culpability is ameliorated by his childhood exposure to alcohol abuse and violence, which he escaped from by leaving home at age 16 and being homeless, leading to the use of heroin from that age, with its consequent impact in the form of his criminal behaviour. In Bugmy, the majority (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) relevantly said:

“43   ... The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

44   Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.” (footnote omitted)

Prospects of rehabilitation

48. Ms Duffy considered the rehabilitative needs of the offender as follows:

“Since coming to gaol, [the offender] has been threatened and intimidated by inmates and he was transferred to protection. In this part of gaol, he may have fewer opportunities to engage in rehabilitative programs but could benefit from training for, and engaging in employment, as well as undertaking programs to help him deal with stress and conflict. The EQUIPS Foundation and Aggression programs could be suitable, as well as the RUSH [program] (Real Understanding of Self Help), which focuses on the management and moderation of negative emotions and development of interpersonal skills. It uses cognitive, behavioural and acceptance-based interventions to validate the offender’s current responses to stressful situations and facilitate self-help and life enhancement skills.”

49. As noted, it is to the offender’s credit that he has addressed, and continues to address, his heroin addiction. The offender’s prospects of further rehabilitation, in my view, are ultimately dependent upon whether he chooses to address his tendency to resort to explosive physical aggression and eschews carrying or using knives as a weapon. That may not be easily achievable at his age in terms of entrenched behavioural patterns and in view of the offender’s reluctance to talk about his past, but it is clearly necessary if he is to move on from his violent criminal offending. In the absence of any evidence of steps taken in that direction to date, and his rejection to date of the support of those who care for him, I must conclude that his prospects of rehabilitation are poor.

Special circumstances

50. Counsel for the offender submits that, since the offender has spent a significant portion of his adult life in custody, there is a danger of him being institutionalised, if that has not already occurred. Accordingly, on his release he will require ongoing assistance, supervision and guidance from Community Corrections, which warrants an adjustment of the statutory ratio of the non-parole period to the total sentence: see s 44 of the Crimes (Sentencing Procedure) Act.

Consideration

51. The sentence must significantly reflect general deterrence, in view of the unprovoked nature of the offence, and its commission in a public place and in the presence of members of the community. The offender’s record of offences of violence, personal violence and those involving the use of a knife, warrant a particular need for the sentence to reflect specific deterrence: see the Court in R v Wood (2014) 244 A Crim R 501; [2014] NSWCCA 184 at [83]. A consideration of this offence in light of his criminal record also enlivens concern for the future protection of the community, although I am mindful that the sentence must not be impacted by these factors so as to become disproportionate to the gravity of the offence: see Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477 per Mason CJ, Brennan, Dawson and Toohey JJ.

52. The offender’s offer to plead guilty to a charge of manslaughter by reason of excessive self-defence, made during the committal and not withdrawn in spite of its rejection, entitles him to a discount from the head sentence that otherwise would have applied, which the parties are agreed on, and I accept, is 25 per cent in accordance with s 25E(3)(a) of the Crimes (Sentencing Procedure) Act.

53. As I am obliged to do by s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), I advise the offender of the existence of that Act and its application to this offence. That means that the State of New South Wales may make an application to this Court for the offender to either not be released from custody when he may qualify for parole or at the end of his head sentence, or that he only be released subject to supervision orders. The Court may make such an order if, in the Court’s opinion, there is an unacceptable risk that he would commit a serious offence upon release.

54. One of the reasons that I am required to so inform the offender is that it may encourage him to make use of his time in prison to engage in courses of rehabilitation, such as those recommended by Ms Duffy, that may be made available to him, in order to enhance his chances of not being subject to such an application.

55. The evidence of the offender’s deprived childhood is scant. While it is understandable that the offender may have been reluctant to “open up” on traumatic childhood experiences to Ms Duffy, his older sister was a potential alternative avenue of background information on their childhood household and, in particular, the treatment of the offender by his father. The negative experiences endured by the offender appear to have been confined to the household in which he lived and more particularly to the father-son relationship, rather than being part of an extended family or community-wide experience. The references in the offender’s former partner’s statement concerning his reluctance to discuss his childhood other than in a broad fashion, and his feelings of rejection by his parents, were not provided by the offender in the context of him facing sentence for a serious offence; they therefore add to the reliability of the brief history that he did provide to Ms Duffy, so as to provide an evidentiary basis for a finding that his lifetime of difficulty in maintaining a law-abiding lifestyle is partly explicable by, and attributable to, the maltreatment by his father when he was a child. I particularly note that, having left home when aged 16 and becoming homeless, his introduction to heroin that same year and subsequent addiction was another challenge for him to overcome in establishing a law-abiding lifestyle for an extended period.

56. I find special circumstances on the basis that, in my opinion, the offender will require an extended period of supervision when he is finally released back into the community. His maladaptive behaviour in the community is such that, although he made significant progress during the seven years he was back in the community before this offence, he will clearly still need strong support when he is next released.

57. I am satisfied that the only appropriate sentence for the offence is one of imprisonment. I am conscious that the sentence I am imposing is a heavy one for manslaughter by way of excessive self-defence, but in view of the findings I have made, it is appropriate. The starting-point sentence is 16 years, from which I allow a discount of 25 per cent for the utilitarian basis of the plea, thereby reducing it to 12 years. I impose a non-parole period of 8 years.

Sentence

58. Michael Graham Gale, you are convicted of the manslaughter of Steve Edwards. I make the following order:

1. The offender is sentenced to a term of imprisonment comprising a non-parole period of 8 years, and a balance of term of 4 years. The total sentence is 12 years, commencing from 8 May 2018 and expiring on 7 May 2030. The offender will become eligible for possible release on parole when the non-parole period expires on 7 May 2026.

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Decision last updated: 26 June 2020