R v Glanville

[2010] NSWSC 364

CITATION:	R v Glanville [2010] NSWSC 364
HEARING DATE(S):	02/11/09-20/11/09, 12/02/10, 16/04/10
JUDGMENT DATE :	7 May 2010
JUDGMENT OF:	James J
DECISION:	The prisoner is sentenced to a non-parole period of imprisonment of five years commencing on 20 June 2007 and expiring on 19 June 2012 and a balance of the term of one year eight months. The earliest date on which the prisoner will be eligible for release on parole will be 19 June 2012.
CATCHWORDS:	SENTENCING — manslaughter — excessive self-defence — substantial impairment by abnormality of mind
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act Crimes Act Criminal Procedure Act
CATEGORY:	Sentence
PARTIES:	Regina David Glanville
FILE NUMBER(S):	SC 2009/4743
COUNSEL:	J Pickering - Crown M J Johnston - Prisoner
SOLICITORS:	S Kavanagh (Solicitor for Public Prosecutions) Nyman, Gibson & Stewart

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

FRIDAY 7 MAY 2010

2009/4743 R v DAVID GLANVILLE

REMARKS ON SENTENCE

1 HIS HONOUR: On 2 November 2009 David Glanville, also known as David Saliba, to whom I will refer to as “the prisoner”, was indicted before me on a charge that on 20 June 2007 at Claymore he murdered Justin Summers (“the victim”). When indicted, the prisoner pleaded not guilty of murder but added “guilty of manslaughter”. The Crown prosecutor informed the Court that the Crown would not accept a plea of guilty to manslaughter in discharge of the indictment. A trial of the prisoner on the charge of murdering the victim then proceeded.

2 At the conclusion of the trial the jury, after a long retirement, returned a verdict of not guilty of murder and a verdict of guilty of manslaughter. The foreman of the jury in announcing the verdict of guilty of manslaughter added the words “by unlawful and dangerous act”. In sentencing the prisoner I am, of course, bound by the jury’s verdicts that he is guilty only of manslaughter.

3 The evidence at the trial is, of course, available to be used in the proceedings on sentence. The additional evidence in the proceedings on sentence was:-

For the Crown — A pre-sentence report, a criminal history of the prisoner and four victim impact statements from members of the victim’s family, being his mother, his grandmother, his father and stepmother and his sister.

In the victim impact statements members of the victim’s family described the great sense of loss and bereavement they have suffered because of the victim’s death. I have taken the victim impact statements into consideration in the sentencing of the prisoner.

For the defence:-

1. A letter from the prisoner to the court dated 15 April 2010.

2. A Certificate of Achievement earned by the prisoner for completing an alcohol and other drug relapse prevention program while he has been in custody.

3. Letters from his solicitors, including a letter in March 2009 to the Director of Public Prosecutions informing the Director of an offer by the prisoner to plead guilty to manslaughter on the basis of excessive self-defence. This offer was not accepted by the Director of Public Prosecutions.

4. A report by Dr Olaf Nielssen, psychiatrist, dated 25 February 2009. This report was not in evidence at the trial but Dr Nielssen gave oral evidence in the defence case which was substantially in accordance with the report.

5. A report by Dr Stephen Allnutt, psychiatrist, dated 22 July 2009, provided on instructions from the Director of Public Prosecutions. This report was not tendered at the trial and Dr Allnutt did not give evidence at the trial.

6. A report by Dr Pauline Langeluddecke psychologist dated 22 June 2009, provided on instructions from the Director of Public Prosecutions. This report was not tendered at the trial and Dr Langeluddecke did not give evidence at the trial. At the trial occasional references were made to Dr Langeluddecke’s report, when Dr Nielssen was giving evidence.

4 The prisoner did not give evidence at the trial or in the proceedings on sentence (apart from the letter written to the court).

Principles of fact finding

5 In sentencing the prisoner I have the responsibility of determining the facts relevant to sentencing, except that the facts I find must be consistent with the jury’s verdicts of not guilty of murder and guilty of manslaughter and I cannot find any fact which would be adverse to the prisoner, unless it is established beyond reasonable doubt. Subject to these constraints, my task is to find for myself the facts relevant to sentencing and not to endeavour to determine on the basis of what facts the jury found the prisoner not guilty of murder but guilty of manslaughter.

The principal Crown witness at the trial

6 At the trial the principal Crown witness was a young female, who was only 15 years old at the time of the death of the victim and 17 years old at the time of giving evidence. I will refer to her simply as “BHC”. Because of her age BHC was a “vulnerable” person within Pt 6 of the Criminal Procedure Act and, in accordance with Pt 6, she gave evidence at the trial by means of closed-circuit television. Notwithstanding her young age, BHC was at the time of the death of the victim in a relationship with the prisoner, the relationship having commenced when she was only 14.

7 Although the prisoner was in custody on remand on the charge of murder, the relationship between the prisoner and BHC continued for some months after 20 June 2007. On 21 June 2007 and 4 October 2007, while the relationship was still continuing, BHC made statements to the police which were in a number of respects favourable to the prisoner.

8 The relationship between the prisoner and BHC ended about the end of the year 2007. On 29 January 2009 BHC made a further statement to the police, which differed in some respects from her earlier statements. Her evidence at the trial was based on her statement of 29 January 2009. In her evidence at the trial she said that the earlier statements had not been entirely truthful, because at the time of making the statements she had been in a relationship with the prisoner and had been trying to protect him.

9 I am satisfied that I should generally accept BHC’s evidence given at the trial, based on her statement of 29 January 2009.

Findings as to background facts and the facts of the offence

10 I am satisfied that the following facts are, to the requisite degree, established by the evidence.

11 In 2006 the prisoner and BHC entered into a relationship. The prisoner, who was born on 27 February 1980, was then 26 years old. BHC was then only 14 years old.

12 At first the prisoner and BHC lived together at the prisoner’s grandmother’s place. A few weeks before 20 June 2007 they moved into a Department of Housing villa at Claymore, near Campbelltown. The front door of the villa faced, not the street, but a lane way on the opposite side of the villa from the street.

13 The prisoner had been friendly for a number of years with the victim, who had been born on 5 October 1983 and who was accordingly 23 years old at the time of his death.

14 The prisoner and the victim sometimes drank alcohol together. The victim was quickly affected by alcohol and when drunk would, as described by BHC, become “very silly in his actions, “fall(ing) over the place” and could become aggressive, when told not to be silly.

15 Shortly after 11 in the morning on 20 June 2007 the victim sent a text message to the prisoner, proposing that they drink alcohol together that day. The text message read, “Gday bro whats doing do you want to hit the sips, if so call or prank me”. An arrangement was made between the prisoner and the victim that the victim should come to the villa at Claymore.

16 On the afternoon of 20 June 2007 the victim travelled to Claymore by bus and was met at a bus stop by the prisoner and BHC. The three of them went to a bottle shop and bought three standard size bottles of beer and a bottle of vodka.

17 The prisoner, the victim and BHC then went to the villa and started drinking the alcohol. At times they watched television and played poker. Disputed issues of fact which I will seek to determine later in these remarks are how much alcohol the prisoner drank and to what extent he became intoxicated.

18 A stage was reached when all the liquor which had been bought had been consumed and it was agreed that more liquor should be obtained. An amount of money was scraped together between them to pay for more alcohol.

19 The prisoner, the victim and BHC left the villa for the purpose of buying more alcohol. The prisoner was carrying the money which had been scraped together. They walked to the bottle shop at Claymore, which they found was shut. They continued walking towards Campbelltown to find a liquor outlet which was still open.

20 BHC , who was walking a little behind the other two, tripped and fell and hurt her foot. The prisoner came back to assist BHC. The victim continued walking and disappeared over the crest of a hill. When BHC and the prisoner reached the crest of the hill they were unable to see the victim. BHC thought she had heard the sound of a car stopping and thought that the victim might have got into the car.

21 The prisoner and BHC returned to the villa. After he had returned to the villa, the prisoner smoked a number of cones of cannabis.

22 Some time later at approximately 9:30, the victim arrived outside the villa. The doors to the villa had been locked. The victim called out but the prisoner prevented BHC opening a door.

23 The victim was in an unenviable position. He was far from his home. It is likely that he had no money and it was a very cold night near Campbelltown in the middle of winter. It had been BHC’s expectation that he would spend the night at the villa.

24 For a period of 30 to 40 minutes the victim walked around outside the villa, knocking on doors and windows and shouting but there was no response from the prisoner or BHC. The victim made numerous mobile telephone calls to the prisoner, none of which were answered. At about 9:55 the victim sent a text message to the prisoner reading “knock knock boom boom double barrel good night you will never fuck wit me again”. The prisoner did not become aware of this message until after the death of the victim. The victim also made telephone calls to another person who he knew. This other person gave evidence at the trial but he was heavily intoxicated at the time of the calls and I consider that I can place no reliance on his evidence.

25 Eventually, the victim yelled out that he was going to kick in the door to the villa and he then kicked in the front door to the premises, that is the door facing the lane way.

26 The front door of the villa opened into the lounge room. As soon as the victim kicked in the front door, the prisoner ran from a bedroom in the villa into the lounge room. In the lounge room the prisoner kept a baseball bat. The prisoner believed the Claymore area, and particularly the area of the Department of Housing villas, was a violent area and he kept the baseball bat for self-defence. Disputed issues of fact, which I will have to determine later in these remarks, are whether the victim took hold of the baseball bat and struck the prisoner with the bat.

27 It is clear that the prisoner, even if he was not the first to grab the bat, became the person in possession of the bat.

28 In her evidence at the trial BHC said that, after she herself had left the bedroom and passed around a corner in a passageway on the way to the lounge room, she saw the prisoner hit the victim a number of times with the bat. She saw the prisoner continue to hit the victim with the bat, while the victim was lying on the floor.

29 On the basis of BHC’s evidence and the evidence of the pathologist who performed the post-mortem examination of the body of the victim, I am satisfied that the prisoner struck the victim a number of times to the head with the baseball bat, inflicting five blunt force wounds. In the opinion of the pathologist, which I accept, any one or more of three of the wounds could have been lethal. In the pathologist’s opinion, which he supported with reasons and which I accept, two of these three wounds had been caused while the victim was lying on the floor, with his head in contact with the floor.

30 There were a number of fractures to the victim’s skull. The blow which first fractured the victim’s skull would have been delivered with substantial force. However, once the skull had been fractured, less force would have been required to cause the further fractures to the skull which the pathologist observed.

31 The prisoner then dragged the victim’s body out of the lounge room and left the body lying on a kind of porch, with the feet in the front doorway to the lounge room.

Findings about subsequent events

32 The prisoner made a 000 call to police emergency, in which he gave his address and then ended the call. It is not clear whether this call was made before or after the killing of the victim.

33 A little later the prisoner made another 000 call. In this 000 call he said inter alia:-

“I’ve just had someone break into my house and I’ve smacked em. Now you better get here quick…the bloke’s out on my front veranda, unconscious…he’s break into my house so I’ve attacked them…I’ve had my house broken into”.

34 He said that he had hit the person with a baseball bat and that “I’m holding the door closed because I don’t want anyone else coming into, to break into my house”.

35 Ambulance officers and police arrived at the villa. The prisoner told the first police officers who arrived (Constable Boys and Constable Alexander) that “a male has broken into my house. I hit him twice in the head with a baseball bat”.

36 The prisoner, when asked by a senior detective (Detective Sergeant Hyndes) what had happened, said:-

“I was inside and I heard someone bashing on the front window trying to get in.
I said: Is this your house?
He said: Yeah. I called the police. The person then started to bash on the front door. He came in and we wrestled in the room. I kicked him and he fell. I then grabbed a baseball bat and hit him twice.”

Sergeant Hyndes then administered a caution to the prisoner.

37 A curious feature of the 000 call and the accounts given to the police is that the prisoner referred to the person who had entered the house as if he was an unknown intruder and not a friend of the prisoner’s who had been in the villa earlier that night as a guest of the prisoner.

38 I have set out parts of what the prisoner told the police officers, because they are relevant to issues which I will have to determine. I am not to be taken as accepting that they are fully accurate accounts of what happened.

39 In the early morning of 21 June 2007 the prisoner participated in an electronically recorded interview by police. The prisoner’s mother Mrs Janelle Saliba was present at the interview.

40 In the interview the prisoner said that he knew that the person lying in the doorway when police arrived was Justin Summers and that he had known Justin Summers since 2002. The prisoner agreed that he had had the conversation with Sergeant Hyndes, except that he said that he had told the detective that he had heard bashing on the windows and not on the doors of the villa and he denied that he had said that he and the victim had wrestled. The prisoner denied feeling affected by alcohol at the time of the killing. The prisoner answered a number of questions he was asked by saying “no comment” and he then exercised his right to decline to participate further in the interview.

41 There was evidence at the trial of a number of telephone conversations between July 2007 and December 2007 between the prisoner and BHC, while the prisoner was in custody after being arrested.

42 In a conversation on 3 July 2007 the prisoner said that he had not known about the text message from the victim on the night of 20 June 2007.

43 In a conversation on 14 September 2007 the prisoner and BHC said:-

“Prisoner: People say I have a good chance of beating all this, the only thing that might fuck me up is like apparently I used excessive force.
BHC: Yeah that’s it, the only problem.
Prisoner: But umm, there’s, when he grabbed the bat first when he come through the door…and that’s when I hit him and took the bat off him…
…..well I hit him he dropped the bat and I picked the bat up, but I shouldn’t be talking about this with you about this because you’re a witness, the phone’s recorded and I could get in trouble or you know what I mean.”

44 Part of a conversation on 15 September was in the following terms:-

“Prisoner: His [that is, an acquaintance of the prisoner’s] girlfriend is studying at uni to be a solicitor and I asked him to get her to find out information for me about self-defence and all that sort of shit because he broke into my house.
BHC: that’s right…..
Prisoner: and there’s gotta be something where I can protect me and you because you were there as well, I love you…”

45 In a conversation on 21 October 2007 BHC gave indications of unwillingness to continue the relationship. Part of this conversation was in the following terms:-

“Prisoner: My charge is murder and there is no way I’m guilty of murder.
BHC: You knew Justin was at the door baby.
Prisoner: What
Prisoner: Did you tell the cops that
BHC: No.
Prisoner: So what he forced entry into our house, listen I don’t wanna argue and don’t want to fight. I was protecting us baby you know that.

46 Parts of a conversation on 23 October 2007 were as follows:-

“Prisoner: You know how you said we knew it was him at the door
BHC: Yeah
Prisoner: Did you see him
BHC: No I didn’t say that to the police
Prisoner: No but did you see him
BHC: No
Prisoner: Well there you go. The solicitors and that they’re going to pound you right in the box, they’re going to say did you see him, cause you didn’t see him how could you be 100% sure that it was him?
BHC: I know babe.
………….
Prisoner: Baby, my case is a very, I got a very good chance of being acquitted, which means being let go, because of self-defence.
BHC: Everyone’s telling me that because you took it too far, you hit him too many times…
Prisoner: No I didn’t, he had the baseball bat first.
BHC: Yeah but how many times did you hit him babe…
Prisoner: ….we got into a wrestle…
BHC: Its not that easy to kill someone with a baseball bat, I’m sorry…”

47 In a conversation on 11 December 2007 the prisoner indicated again that he was aware that the telephone calls were being recorded.

48 Part of a conversation on 11 December 2007 was in the following terms:-

“Prisoner: That’s when I make a plea, guilty or not guilty and I’m pleading not guilty…as if I’m gonna be found guilty of murder…, it’s not as if I went out and specifically planned to kill him, that’s not what happened, that’s murder.
BHC: You knew he was at the door
Prisoner: So what? That doesn’t mean shit.
BHC: You picked up a baseball bat and took it too far, I’m sorry but I told the police that…”

Determination of some disputed issues of fact

49 One disputed issue of fact is how much alcohol the prisoner had drunk on 20 June 2007 and how intoxicated he had become.

50 An analysis of the blood of the victim showed that the victim’s blood alcohol level was 0.230 grams per 100 millilitres of blood. The victim was, accordingly, heavily intoxicated. The blood alcohol level of the prisoner and of BHC was not tested.

51 As I have already noted, the prisoner, when interviewed on 21 June 2007, denied that he had felt affected by alcohol. When he was interviewed by Dr Nielssen on 12 February 2009, the prisoner told Dr Nielssen that he had not drunk as much on the night of 20 June 2007 as the victim and BHC had.

52 BHC gave evidence, which I accept, that she did not on 20 June 2007 drink any of the beer, that the prisoner and the victim drank equal amounts of the beer and that all three of them were drinking the vodka. She did not know how much vodka the prisoner had drunk.

53 I consider it unlikely, when the purpose of the victim’s visit was to drink alcohol with the prisoner and the prisoner and the victim were drinking together, that the prisoner would have drunk much less than the victim. I find that the prisoner was affected by alcohol at least to some extent. It is not possible to make any more precise finding.

54 Important disputed issues of fact are whether, after the victim broke in the door to the villa, the victim was the first to take hold of the baseball bat and whether the victim then struck the prisoner with the bat and whether the prisoner took control of the bat only by taking it from the victim.

55 The first occasion on which the prisoner asserted that the victim had taken hold of the bat was in the intercepted telephone conversation between the prisoner and BHC on 14 September 2007. This conversation occurred almost three months after 20 June 2007. It was a conversation which the prisoner knew was being recorded and it was a conversation occurring after the prisoner had obviously acquired some knowledge of the law of self-defence, including the use of excessive force in self-defence.

56 When interviewed by Dr Nielssen on 12 February 2009 the prisoner said that the victim had picked up the baseball bat and had hit the prisoner over the head with the bat.

57 The prisoner’s account in the conversation of 14 September 2007 is to be contrasted with his accounts in the second 000 call, in the conversation with Constable Boys and Constable Alexander on 20 June 2007 and in the conversation with Sergeant Hyndes on 20 June 2007. In each of these accounts the prisoner said that he had hit the other person with the baseball bat. In none of them did he say that the other person had had the baseball bat.

58 I consider it not reasonably possible that, if the victim had in fact grabbed the baseball bat and, a fortiori, if the victim had hit or threatened the prisoner with the bat, the prisoner would not have said so in the accounts he gave on 20 June 2007. In the accounts on 20 June 2007 the prisoner sought to justify his actions but the justification he gave was that the victim had broken into his house, not that the victim had menaced or hit him with the baseball bat.

59 If the victim had struck the prisoner with the baseball bat, it is likely that the prisoner would have suffered some visible injury. However, Sergeant Hyndes gave evidence that on the night of 20 June 2007 he did not observe any injury to the prisoner. It Is more likely that the prisoner, and not the victim, would have known where in the villa the baseball bat was.

60 I find that the victim did not pick up the baseball bat and, consequently, did not hit or threaten the prisoner with the baseball bat.

Subjective features

61 The following information about the prisoner’s subjective features is taken mainly from the pre-sentence report and Dr Nielssen’s report.

62 The prisoner was born on 27 February 1980 and was the only child of his parents. His parents separated and his mother remarried, when the prisoner was only 3 years old. The prisoner lived for many years with his grandmother, who died in 2008, while the prisoner was in custody. The prisoner’s mother continues to be supportive of the prisoner.

63 In June 1995, when the prisoner was only 15 years old, he had a motorcycle accident in which he suffered serious head and other injuries, including injuries to the front and temporal lobes of his brain. He was in a coma for 21 days and then in a hospital for several months.

64 In his report Dr Nielssen expressed the opinion, which I accept, that “there was subtle evidence of impairment in frontal lobe function during the interview (with the prisoner) in the mild impairment in direction of speech and his ability to shift from topic to topic and also the sudden mood swing with no obvious trigger. Moreover, he did not seem to be aware of any impairment in areas of judgement and impulse control”. I will make further references to Dr Nielssen’s evidence later in these remarks.

65 The prisoner’s family noticed changes in the prisoner’s personality after the motorcycle accident and, particularly, that he exhibited paranoia and had poor social skills.

66 In the motorcycle accident the prisoner also suffered an injury to his right shoulder, which has left him with a permanently weakened right shoulder and arm.

67 The prisoner left school in Year 11. At the age of 16 he was granted a disability support pension. He has had a number of short-term casual positions, cancelling the disability pension whenever he was employed.

68 The prisoner began using cannabis at the age of 14 and became a regular user of cannabis after the motorcycle accident. In June 2007 he was a heavy daily user of cannabis. The prisoner told the author of the pre-sentence report, and I accept, that on the night of 20 June 2007 he smoked a number of cones of cannabis but the cannabis was of low potency to which he had a high degree of tolerance.

69 In the years following the motorcycle accident the prisoner was admitted to the emergency department of the psychiatric ward of Campbelltown Hospital on more than 20 occasions, often with a history of deliberate self-harm. The prisoner was discharged after a hospital admission, only a few days before 20 June 2007. He was unreliable in taking prescribed medication and unwilling to reduce his use of drugs and alcohol.

70 The prisoner has a number of previous criminal convictions but mainly for motor vehicle offences. In 2003 he was convicted of assault occasioning actual bodily harm and contravening an apprehended domestic violence order. I do not regard his criminal history as being of any significance.

71 In 2006 the prisoner entered into the relationship with BHC and in 2007 they moved to Claymore. The prisoner had a perception that Claymore was an area with a high level of crime.

72 After the prisoner was arrested on 20 June 2007 he spent the first ten months of his custody in the Mental Health Screening Unit of the MRRC, a facility for prisoners considered to be mentally ill and in need of treatment. He has since been treated with mood stabilising and anti-depressant medication. While in custody he has taken some steps to address his mental health and drug problems.

Findings of further facts consistent with the jury’s verdict of guilty of manslaughter

73 It is necessary to determine what further facts should be found which would be consistent with the jury’s verdict of guilty of manslaughter (and its verdict of not guilty of murder).

74 It is necessary for me to determine these further facts for myself and I should not endeavour to determine on what basis the jury found the prisoner guilty of manslaughter. Accordingly, I consider that I should disregard the additional words spoken by the foreman of the jury in announcing the jury’s verdict of guilty of manslaughter. However, I consider that in finding further facts which would be consistent with the verdict of guilty of manslaughter, I should confine myself to the evidence that was before the jury, that is the evidence which was given at the trial.

75 At the trial directions were given to the jury to the effect that the jury (or individual jurors) could reach a verdict of guilty of manslaughter in any one of three ways.

76 One way the jury were directed that they could reach a verdict of guilty of manslaughter would be that the Crown had not proved beyond reasonable doubt that the prisoner had the intent required for murder but the Crown had proved beyond reasonable doubt all of the elements of manslaughter by unlawful and dangerous act.

77 Another way the jury were directed that they could reach a verdict of guilty of manslaughter would be that the Crown had not proved beyond reasonable doubt that the prisoner did not believe that his conduct constituting the offence was necessary to defend himself or himself and BHC but the Crown had proved beyond reasonable doubt that the prisoner’s conduct constituting the offence was not a reasonable response in the circumstances as he perceived them – that is, that it was a case of excessive self-defence under ss 418 and 421 of the Crimes Act.

78 A third way the jury were directed that they could reach a verdict of guilty of manslaughter would be that the Crown had proved beyond reasonable doubt all the elements of murder (including that the prisoner did not act in self-defence) but the prisoner had proved on the balance of probabilities the defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act.

79 Counsel for the Crown submitted that I should find that the present case was a case of excessive self-defence. Counsel for the prisoner submitted that I should find both that it was a case of excessive self-defence and also that, if it was not a case of excessive self-defence, the prisoner had established the defence of substantial impairment by abnormality of mind.

80 It is not an easy task to determine what facts I should find which would be consistent with a verdict of guilty of manslaughter reached in one or more of these three ways.

81 I do not consider that I should find facts which would be consistent with a verdict of guilty of manslaughter reached in the first way. I have already found that the prisoner struck the victim on the head a number of times with the baseball bat with sufficient force to cause fractures to the victim’s skull. At the very least, the prisoner had the intent to inflict really serious bodily injury on the victim.

82 As to the second possible way of reaching a verdict of guilty of manslaughter, it would be necessary for me to find that there was at least a reasonable possibility that the prisoner believed his conduct constituting the offence was necessary to defend himself or BHC. By virtue of s 420 of the Crimes Act it would not be sufficient for me to find that there was a reasonable possibility that the prisoner believed that his conduct was necessary to protect his property or to remove a trespasser from his property.

83 I have already described the conduct of the prisoner constituting the offence. There is difficulty in making a finding that the prisoner, within the first limb of s 418 of the Crimes Act, reasonably possibly believed that it was necessary, in order to defend himself or BHC, to strike the victim a number of times with the baseball bat, including two blows after the victim had fallen to the floor and was lying on the floor. The prisoner’s accounts on 20 June 2007 suggest that he struck the victim, not in self-defence, but because the victim had broken into his house.

84 On the other hand, the victim was clearly heavily intoxicated. The victim, to the knowledge of the prisoner, was capable of abnormal behaviour, when intoxicated. The victim had been knocking loudly on the windows and the doors of the villa and shouting abuse. The text message sent by the victim, even though the prisoner was not then aware of it, indicates that the victim was angry. The victim kicked in the front door to the villa.

85 The prisoner knew that he had a seriously weakened right arm. His perception of the threat presented by the victim could have been affected by the effects of his brain injury and the use by him on 20 June 2007 of alcohol and cannabis. In an emergency situation the prisoner struck the blows with the baseball bat in quick succession, without time for reflection.

86 I consider that I should find that it is reasonably possible that the prisoner believed that his acts in killing the victim were necessary to defend himself or BHC.

87 As to the third possible way of reaching a verdict of guilty of manslaughter, Dr Nielssen considered that a defence of substantial impairment was available to the prisoner. Dr Nielssen considered that at the time the offence was committed there was an underlying condition in the form of serious brain damage affecting the frontal lobes of the prisoner’s brain and that, as a result of the frontal lobe damage, there was a substantial impairment of the prisoner’s ability to control his actions.

88 Dr Nielssen did not consider that there had been any substantial impairment of the prisoner’s capacity to understand events, at the time the offence was committed, and he did not express any definite opinion on whether the prisoner’s capacity to judge whether his actions were right or wrong had been substantially impaired at the time of the offence. However, he did consider that the prisoner’s capacity to control his actions, and particularly his ability to control his impulses, had been substantially impaired at the time of the offence by his abnormal state of mind resulting from the damage to his brain.

89 The Crown prosecutor sought to rely on a passage in the cross-examination of Dr Nielssen at the trial in which Dr Nielssen conceded that, not having information on how much alcohol the prisoner had consumed and how intoxicated he was on the night of 20 June 2007, he could not give an accurate opinion as to whether it was the prisoner’s underlying condition or a state of temporary intoxication which had been the main contributor to the prisoner’s conduct on that night.

90 However, Dr Nielssen continued to maintain that on 20 June 2007 the prisoner had had a significant impairment in his mental functioning arising from his underlying brain injury, whether he was intoxicated or not. Dr Nielssen pointed to the evidence that the prisoner had continued to suffer impairment of his mental functioning, after he was taken into custody and, being in custody, no longer had access to cannabis and alcohol.

91 I consider that Dr Nielssen’s evidence should be accepted. I further consider that the prisoner’s impairment by reason of his abnormality of mind was so substantial as to warrant liability for murder being reduced to manslaughter.

92 Dr Nielssen was the only psychiatrist to give evidence at the trial, the Crown not calling any psychiatrist.

93 The Crown had in fact obtained a report from a psychiatrist Dr Allnutt. Earlier in these remarks I said that in finding facts which would be consistent with the jury’s verdict of guilty of manslaughter I would confine myself to the evidence which was given at the trial. If it was permissible to refer to Dr Allnutt’s report, which was admitted into evidence in the proceedings on sentence, Dr Allnutt’s report would lend support to Dr Nielssen’s opinions. In his report Dr Allnutt concluded that “overall and on balance I believe he (the prisoner) has grounds to pursue a defence of substantial impairment”.

94 I consider that I should find that, apart from self-defence, the defence of substantial impairment by abnormality of mind is established.

Sentencing laws and principles

95 The maximum sentence for manslaughter is imprisonment for 25 years. There is no standard non-parole period for the offence of manslaughter.

96 Offences of manslaughter, even within the same category of manslaughter, differ greatly in their objective seriousness and sentences passed on other offenders are of only limited assistance. Most of the cases to which I was referred by counsel were offences of excessive self-defence manslaughter. The head sentences for offences of excessive self-defence manslaughter to which I was referred varied from ten years to four years. However, these sentences do not establish a range which cannot be departed from.

97 In sentencing for manslaughter a sentencing judge is required to bear in mind that the community expects that human life will be protected by the law and that the felonious taking of human life is a most serious offence.

Consideration

98 In the present case the aggravating factor in s 21A(2)(c) of the Crimes (Sentencing Procedure) Act, that the offence involved the actual use of a weapon, was present, although many offences of manslaughter do involve the actual use of a weapon.

99 It was submitted by both counsel that the aggravating factor in s 21A(2)(ea) was also present, in that the offence was committed in the presence of BHC, who was under the age of 18 years. However, par (ea) of s 21A(2) was not in force at the time when the present offence was committed. In any event, BHC was 15 years old and not a young child and she was far from being naïve.

100 Some mitigating factors in s 21A(3) of the Crimes (Sentencing Procedure) Act were clearly present. The offence was not planned. There was a degree of provocation by the victim, in that the victim had knocked on doors and windows of the villa and had shouted abuse and he had broken in the door to the villa. The prisoner is entitled to some discount in sentencing for his offer to plead guilty to manslaughter, under the principle that an offer of a plea of guilty to an offence, which is rejected by the Crown but is consistent with the verdict returned by a jury after a trial, can result in a discount, even though there was no utilitarian value.

101 As to remorse, in the letter he wrote to the Court the prisoner claimed to be remorseful. However, in the accounts he gave on 20 June 2007 and in the intercepted telephone conversations between himself and BHC between July and December 2007 the prisoner gave no indication of remorse for the death of the victim. The prisoner did not give evidence in the trial or in the proceedings on sentence. I am not satisfied that the prisoner has shown remorse.

102 I accept a submission by counsel for the prisoner that I should find that the prisoner was not fully aware of the consequences of his actions, because of a disability arising from his brain injuries and his state of intoxication.

103 In the state of the evidence I am unable to make any finding that the prisoner is unlikely to re-offend or that he has good prospects of rehabilitation.

104 I consider that an important factor in the sentencing of the prisoner is the grossly disproportionate nature of the response by the prisoner to the threat he believed the victim presented to him. As I have already noted, the prisoner picked up the baseball bat and with the baseball bat struck the victim on the head a number of times and continued to strike the victim on the head with the bat, after the victim was lying on the ground and clearly presented no threat to the prisoner. The prisoner struck the victim with sufficient force to cause several fractures to the victim’s skull. However, I am not satisfied beyond reasonable doubt that the prisoner had an intent to kill the victim. In the 000 call the prisoner spoke of the victim being on the front veranda “unconscious”.

105 In favour of the prisoner I have to take into account the various findings I have made in these remarks, including my finding that it is reasonably possible that the prisoner believed, and he should therefore be taken as having believed, that it was necessary to act in self-defence and the finding that his capacity to control his actions was substantially impaired by an abnormality of mind arising from an underlying condition.

106 The sentence will commence on 20 June 2007, the date on which the prisoner was arrested and from which he has remained in custody. I do not consider that I should find special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act. Factors which might conceivably have been regarded as amounting to special circumstances have already been taken into account by me in determining the head sentence. The prisoner undoubtedly has problems arising from his brain injuries and his abuse of alcohol and drugs but I am not satisfied that he is likely to receive any care or treatment, if he is at liberty, which would be superior to the care and treatment he has received while in custody.

David Glanville — stand up — I sentence you to a non-parole period of imprisonment of five years commencing on 20 June 2007 and expiring on 19 June 2012 and a balance of the term of one year eight months. The earliest date on which you will be eligible for release on parole will be 19 June 2012.

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