R v Horton

[2010] NSWSC 1007

CITATION:	R v Horton [2010] NSWSC 1007
HEARING DATE(S):	15-17 June 2010; 2 August 2010 & 6 September 2010.
JUDGMENT DATE :	16 September 2010
JURISDICTION:	COMMON LAW
JUDGMENT OF:	Davies J
DECISION:	Sentenced to a non-parole period of imprisonment of 2 years commencing on 9 October 2009 and expiring on 8 October 2011, and the balance of the term of 2 years 3 months commencing on 9 October 2011 and expiring on 8 January 2014.
CATCHWORDS:	CRIMINAL LAW - sentence - manslaughter - excessive self-defence and provocation - deceased killed by knife that he brought to the scene.
LEGISLATION CITED:	Civil Procedure Act 2005 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Callaghan v R [2006] NSWCCA 58 Collon v R [2009] NSWCCA 187 Mill v The Queen (1988) 166 CLR 59 R v Blacklidge (unreported – NSWCCA – 12 December 1995) R v Bolt [2001] NSWCCA 487; (2001) 126 A Crim R 284 R v Dawes [2004] NSWCCA 363 R v Fernando [2002] NSWCCA 28 R v Hamilton; R v Sandilands [2007] NSWSC 452 R v HT [2010] NSWSC 324 R v King [2007] NSWSC 1134 R v Lavender [2005] HCA 37 R v Previtera (1997) 94 A Crim R 76 R v Scott David Lynn [2008] NSWSC 1122 R v Wilkinson (No 5) [2009] NSWSC 432 R v Williamson [2208] NSWSC 686
PARTIES:	Crown Lucas William Gregory Horton (Offender)
FILE NUMBER(S):	SC 2008/68340
COUNSEL:	W Creasy (Crown) D Campbell SC (Offender)
SOLICITORS:	Office of the Director of Public Prosecutions (Crown) Campbell, Paton & Taylor (Offender)

- 15 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES J

16 SEPTEMBER 2010

2008/68340 R V HORTON

REMARKS ON SENTENCE

1 Lucas William Gregory Horton (the offender) was indicted on a charge that he murdered David Wayne Betwell at Blayney on 7 December 2008. He initially pleaded not guilty to that offence.

2 On 16 June 2010, the second day of trial, after the jury had been empanelled but prior to the Crown opening the case to the jury, the offender requested to be re-arraigned. He then pleaded not guilty to murder but guilty to manslaughter and the Crown Prosecutor accepted that plea in discharge of the indictment. The plea was entered and accepted principally on the basis of excessive self-defence but the Crown Prosecutor acknowledged that there had to be an element of provocation in the matter as well.

Facts

3 The Agreed Statement of Facts disclosed the following. At about 3.25am on Sunday 7 December 2008 Oscar Zideluns left his Blayney property and drove along Greghamstown Road. He came upon a white Ford sedan parked near the entrance to a quarry. The driver's door was open and the interior light was on. He noticed a man sitting in the driver's seat with his head slumped forward. Mr Zideluns did not stop, assuming the man was sleeping.

4 At about 8.45am that same morning Anthony Laing rode his pushbike from Blayney along Greghamstown Road on his way to Millthorpe. He too noticed the white vehicle parked on the road with the driver's door open. Mr Laing got off his pushbike to take a closer look. He saw a sandal on the roadway. He noticed a small pool of blood on the road surface in the vicinity of the driver's door. He noticed the man's hands were sitting in his lap and he saw blood on his hands. He concluded that the man was deceased.

5 Mr Laing rode his pushbike to the Zideluns's farm and sought assistance from Mrs Sue Zideluns. They both returned to the vehicle and both noted blood on the man and a black handled knife on the floor between his legs. Mr Laing noted the man was wearing a sandal on one foot and the other foot was bare. He also noticed a hairbrush on the road with blood on it near the driver's door. Without touching anything they both returned to Mrs Zideluns's vehicle and she called '000'.

6 Ambulance officers Colin Rouxel and Lyn Davidson arrived followed shortly after by Senior Constable Hussell from Carcoar. Senior Constable Darlene Gregory attended at about 10.22am and established a crime scene. She conducted a general forensic examination of the scene. Within the vehicle she observed bloodstaining to the ignition barrel, centre console, gear stick and dashboard.

7 In the boot, amongst other things, she located two syringe packets. She photographed areas of apparent bloodstains on the road surface and both within and on the exterior of the vehicle. She noted the ignition keys were not in the ignition. The deceased's wallet and mobile telephone were in his jeans pockets.

8 The deceased was identified as David Wayne Betwell. He lived in Blayney and was known to local police as a small time user and supplier of heroin. As at December 2008 David Betwell resided in Blayney with his partner Susan and their two children. He had a heroin habit, and to support that habit he supplied that drug to friends.

9 In the very early hours of the morning of Sunday 7 December 2008 Mrs Betwell was woken by the sounds of the deceased leaving the home. She went to the kitchen and saw that the deceased had left a plastic bag on the bench with a small quantity of heroin in it. She was aware that he usually kept his stash of heroin in the back portion of the hairbrush.

10 Swabs taken from some of the stains on the road surface gave a positive reaction to human blood. The DNA profile extracted from that blood matched the deceased's DNA profile.

11 Swabs were taken of the knife handle and the knife blade. An examination of the swab of the knife blade was positive for human blood which disclosed there was a mixture of DNA from two individuals. The DNA profile of the major contributor matched the offender’s DNA profile. The mixture was too weak to determine the other contributor. Examination of the swab from the knife handle was positive for human blood and the DNA profile of that blood matched the deceased's profile.

12 Swabs were taken from the brush handle and from the back of the brush. The handle tested positive for blood and the DNA matched the deceased. The back of the brush also tested positive for blood and there was a partial match with the deceased's DNA.

13 In addition to the swabs, the back of the hair brush was removed, and located inside was a small clear plastic bag containing heroin and two empty silver foils. No fingerprints were found on the handle of the knife nor on the brush.

14 A line search was conducted at the crime scene on the afternoon of that day in an attempt to locate the keys to the deceased's vehicle. They were never recovered.

15 At about 3.45am on that same morning the offender was admitted to the Orange Base Hospital with a number of stab wounds. He was taken there by Shannon Toohey and his brother Jason Horton. There was a 10cm laceration to the right chest and there were two further wounds in the right trapezius region which were somewhat deeper than the chest wound. No major blood vessels or nerves were damaged in either wound and both were cleaned and closed over.

16 Police were informed about the offender’s presence at the hospital. Sergeant Turner attended the hospital and spoke to the offender shortly after he was taken from surgery.

17 The offender declined to tell the Sergeant who it was that stabbed him. However, he did tell the officer:

“There's no point mucking around: it was a drug deal: the cunt stole $2000 off me and then tried to stab me in the throat. He tried to kill me: I just want my money back.”

18 Nicola Dower arrived at the hospital soon after to inquire about money she had given the offender on 5 December 2008 to buy a child's motorbike for her son for Christmas. When she asked the offender about her money he told her he had been "ripped" by old mate for three grand. Amongst other things, the offender told Ms Dower:

“He charged at me and I felt a stinging, tingling sensation and I saw blood and said ‘you dog cunt you stabbed me’.

He tried to stab me in the throat and I moved back and he got me near the shoulder. I grabbed the knife and stabbed him in the gut.

We grabbed his keys and pegged them into the paddock and left him on the side of the road."

19 Shannon Toohey was pulled over in her vehicle, a white Mitsubishi Verada, later that afternoon. There was a small area of apparent bloodstaining on the vehicle. Police took possession of the vehicle. There was apparent bloodstaining on the rear seat. Jason Horton was unable to be located that day. He was eventually interviewed by police on 10 December 2008.

20 Both Shannon Toohey and Jason Horton were present at the scene on Greghamstown Road at the relevant time.

Version of events by Shannon Toohey

She picked up the offender from his home in Orange. At his suggestion, she picked up his brother, Jason, at Borenore. She drove them both to Blayney taking the direct route through Millthorpe.
She knew the purpose of the trip was for some sort of deal; but didn't know exactly what. The offender told her that he was doing a favour for a friend. As they approached the outskirts of Blayney they came across a car facing the opposite direction - its lights flashed - they followed it into Greghamstown Road where it stopped near the quarry entrance.
The offender got out of the vehicle - she and Jason Horton remained in the car talking and listening to music.
A short time later Ms Toohey heard raised voices and saw the offender and the other man wrestling and punching. She saw no knives; there were no knives in her vehicle.
She got out of the vehicle and saw the offender was bleeding. She put him into the back of the car and rushed him to hospital. The last she saw the other male he was leaning against his car. She did not know whether he was injured or not.
On the way Jason was in the back putting pressure upon his brother's bleeding wounds. The offender said on the way:
“I pulled a knife out of my shoulder. He tried to stab me in the throat. The cunt stabbed me. He's going to rob me and take my money.”
On arrival at the hospital she and Jason took the offender inside.
Ms Toohey visited the offender in hospital on the afternoon of 7 December. While there, the offender told her, amongst other things:
“He was trying to stab me in the throat. He got me once or twice. I grabbed the knife out of his hand.”

He also told her:

“I pulled the knife out of my shoulder. He was going to rob me and take the money.”

She did not know where the keys to the deceased's vehicle were.
Version of events by Jason Horton
It was his belief that they were taking this trip to Blayney in order to buy a bit of smoko - cannabis - for some friends. He saw the offender hand the deceased something. The man had his hand in his pocket and pulled his hand out and "it sort of looked like a punch". He heard an argument and when he looked around he saw the offender jump back and say "you got me".
They were having a bit of a tussle and he saw a knife sticking out of his brother's shoulder. His brother grabbed the knife and they had a bit more of a tussle. He said he didn't get out of the car to go to his brother's assistance. Then Shannon got out of the car and got the offender, bringing him back to the car yelling at Jason to put pressure on his wounds.
When they left, the man was leaning against his car,
looking at them as they drove off. It didn't look as
though there was anything wrong with him. He saw no blood on the deceased as they were leaving.
Jason had met the deceased previously purchasing some drugs off him.
The offender told them on the way to the hospital that this man had robbed him. Jason saw his brother with a roll of money.

21 Apart from a few hundred dollars located in the deceased's wallet, no money was located either in the vehicle or in the near vicinity.

22 The knife that was found in the deceased's motor vehicle was shown to his wife and she indicated to police that it was just like one she owned and there was a knife missing from her knife block.

23 There was evidence of the deceased's blood upon a pair of jeans worn by the offender.

24 A police officer with expertise in blood pattern analysis concluded that:

There was a trail of blood identified by bloodstains on the road surface below the driver's door and extending to a point forward of that vehicle. Those stains appeared to form a loop.
The bloodstains did not establish a direction of movement around this loop.
The bloodstains did not identify any point where the injuries may have been sustained.
The bloodstains indicated movement by the deceased to a point 7.6 metres from the front of his vehicle.
The presence of the offender is established by the presence of his blood on the top door frame on the rear offside door of the deceased's vehicle.
The bloodstaining to the interior of the vehicle appears to be associated with the movement of the deceased as he entered the vehicle and possibly attempted to locate the ignition keys.

25 Dr Cala carried out an autopsy on the deceased. In his opinion the deceased died of a stab wound to the abdomen. The wound was located 100mm above the umbilicus. The overall wound track depth was approximately 160mm from the skin surface to the end of the stab wound. It passed in an upward direction from front to back and was directed slightly to the right side of the body.

26 This wound caused a laceration to a blood vessel known as the inferior vena cava which is the vein carrying blood from the lower part of the body back to the heart. This caused massive blood loss, and death would have followed within 5 to 10 minutes, possibly a little longer.

27 There were no defensive injuries.

28 Dr Cala examined the knife found in the deceased's vehicle. In his opinion the stab wound he found on the deceased could have been caused by that knife.

29 The offender attended the police station in the company of his solicitor and was charged with this matter. Acting on legal advice he declined to take part in an interview with police. However he did agree to provide police with a swab from his mouth upon which later DNA analysis was conducted, and his injuries were photographed.

Victim Impact Statements

30 Four members of the deceased’s family read Victim Impact Statements and tendered some photographs of the deceased with members of his family. All of the statements eloquently expressed the upset and grief which the relatives felt at the death of their husband, son, father and brother. The Statements were all free of recrimination, anger and finger- pointing, and those persons are to be commended for their courage and decency in that regard. I expressed my sympathy to all members of the deceased’s family at the time and I do so again now. I have regard to what was said in R v Previtera (1997) 94 A Crim R 76 at 86-87 with regard to these Statements.

Subjective case

31 The offender did not give evidence. The material which follows comes largely from the report from the Probation and Parole Service and from evidence given by his partner Chanelle Mercier.

32 The offender was born on 4 November 1982 and is now aged almost 28 years. He is the second of 4 children. According to the report from the Probation and Parole Service the offender reported a normal upbringing although he said that both his parents abused alcohol. When he was 10 years of age his family relocated to Queensland for a period of 3 years and then returned to Orange for about 2 years. He attended several schools in both New South Wales and Queensland. He said he was anxious to finish his schooling so he could “get a job and make money”. This led to his truanting and consequent suspension for non-attendance and poor behaviour.

33 When he was aged about 15 years his parents moved to the Northern Territory leaving the offender and his elder brother behind. He lived with his grandparents for some of the time and at other times was forced to find accommodation wherever he was able. He left school at about this time in Year 8 and was employed as a retail assistant at a business in Orange. He held a variety of jobs for a few years on a short-term basis including as a ceramic pot tiler, a general hand in a food outlet and a short period in a kitchen cabinet-making shop. At other times he has been in receipt of unemployment benefits supplemented by income from casual work with his grandfather, who has a fencing and shed building business.

34 The offender was diagnosed with ADHD as a child and was medicated with Dexamphetamines for a period of ten years. In 2004 he was diagnosed with depression and prescribed appropriate medication. However he stopped using that medication after about two weeks. In 2008 he was subsequently diagnosed as depressed and placed on the anti-depressant Avanzor which he still takes.

35 The offender has a longstanding history of alcohol abuse and illicit drug use. He commenced the use of alcohol at the age of 13, and between the ages of 15 and 17 he was drinking more than a carton of beer plus spirits on a daily basis. Since that time his drinking pattern has waxed and waned including periods of abstention.

36 He first used illicit drugs at the age of 12 when he began to smoke cannabis. This developed into daily use and continued with occasional periods of abstinence. He used amphetamines from the age of 13 including on a daily basis between the ages of 15 and 25 except for a 3 year period of abstinence. He commenced the use of heroin at age 13 and used that regularly to the age of 23. He has also occasionally used morphine, cocaine, oxycontin and had a 6 month period of methamphetamine use.

37 The offender’s criminal record dates back to 1997 when he had just turned 15. The offences included robbery with striking, break and enter premises and commit a felony, resisting arrest and common assault. All of these offences were dealt with by sentences other than periods of imprisonment. On 18 July 2008 he was convicted of assault occasioning actual bodily harm and sentenced to 12 months imprisonment commencing on that day with a non-parole period of 3 months. He was in fact on parole for that offence when the present offence was committed.

38 He has been in a relationship with Ms Mercier for 11 years. In the early years there were incidents of domestic violence and separations for protracted periods. It appears that these difficulties were resolved some time ago. His partner gave evidence at the sentencing hearing. She reported that their relationship had been on and off over the 11 year period and the catalyst for the separations was his drug and alcohol abuse. She said that when he is unaffected by drugs and the drugs sub-culture he is a caring father, a loving partner, a generous kind-hearted man and a hard worker. She reported that alcohol was also a problem.

39 Their first child was born in October 2008 just after the offender was released on parole. He started to drink again, first as a celebration for the birth of his son, and thereafter he slipped back into drug taking. He was using cannabis and heroin, and she kicked him out of the house.

40 After the present offence he was returned to gaol until he was released on bail on 24 September 2009. He then went back to live with her and the child. She gave evidence that he appeared to have taken control of his life in that time. She said that he abided by his bail conditions including the curfew to be home by 8 o’clock at night. He was not drinking or taking drugs in that period. She said that he had expressed regret for what had happened, said that he hated all drugs and does not want anything to do with them again.

41 She said that she still wishes to be with him but that this is his last chance. If he goes off the rails again she would be strongly thinking about ending the relationship.

42 I found Ms Mercier to be an impressive witness who was determined to try to make her relationship with the offender work, and to have a proper family life with him and their child. Her statement that he was a hard worker when he was not involved in drinking and drug taking was supported by what his grandfather told the Probation and Parole Service.

43 Mr David Campbell of Senior Counsel who appeared for the offender tendered and read to the Court a letter that the offender wrote on 28 May 2009. The letter was addressed “To whom it may concern” and it expressed his very great regret for what happened on the night that the deceased died. The letter acknowledged that he ruined not only his life and his family’s lives but the lives of the deceased’s family as well. He said that he had only recently found out that the deceased had children, and that affected him very greatly because a father could never be replaced. The letter expresses a number of times his sorrow to the family of the deceased.

44 I accept that the letter expresses the genuine remorse of the offender.

Objective criminality

45 It is now necessary to come to a conclusion in relation to the objective seriousness and the degree of culpability involved in the commission of the offence of manslaughter in the present circumstances.

46 The starting point is that the death of a human being by any unlawful killing is one of the gravest offences against an ordered society: R v Bolt [2001] NSWCCA 487; (2001) 126 A Crim R 284 at 293. It is the responsibility of the Courts to protect and preserve human life and to punish those who unlawfully take it: R v Dawes [2004] NSWCCA 363 at [31].

47 But, as was observed by Gleeson CJ, McHugh, Gummow and Hayne JJ in R v Lavender [2005] HCA 37 at [22] of all serious offences, manslaughter attracts the widest range of possible sentences. That is because, as Gleeson CJ said in R v Blacklidge (unreported – NSWCCA – 12 December 1995) manslaughter comprehends all forms of punishable homicide other than murder, and includes causing death where there was an intent to inflict grievous bodily harm or with reckless indifference to life, and also other forms of manslaughter sometimes called “involuntary” which may be constituted by death caused by an unlawful and dangerous act. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.

48 In the present case, the offender’s plea to manslaughter was accepted on the basis that there was excessive self-defence involved in the killing of the deceased. Additionally, the Crown accepts that there was an element of provocation involved in all the circumstances. As Adams J said in R v Hamilton; R v Sandilands [2007] NSWSC 452 at [32]:

In circumstances where there is a genuine belief that the acts of violence committed by an offender are necessary in self-defence, even though, objectively speaking, they were more violent than was reasonably called for, the moral culpability involved places the crime well and truly in the lower range of seriousness.

49 The issue that needs to be decided is the proper basis for the manslaughter conviction. The Crown submitted that I should find that the offender intended at least to cause grievous bodily harm to the deceased. Mr Campbell submitted that it was manslaughter by an unlawful and dangerous act in circumstances where there was an unreasonable exercise of force in response to a perceived risk.

50 I cannot be satisfied beyond reasonable doubt that the offender intended to inflict grievous bodily harm on the deceased. There is no doubt that excessive force was used. At the time that the offender had the knife in his hand the deceased was unarmed. Moreover, if the offender was still in fear of his safety he could at least have called his brother and/or Ms Toohey for assistance, or even backed away whilst threatening the deceased with the knife.

51 Nevertheless, in circumstances where the offender had already been stabbed on 3 occasions, where he pulled the knife out of his own shoulder, where he stabbed the deceased only once, and where the Crown accepts that there is an element of provocation involved, there is not sufficient evidence to find beyond reasonable doubt that the offender intended to inflict grievous bodily harm. Rather, I find that the death of the deceased was occasioned by an unlawful and dangerous act, being the single stab wound inflicted by the offender.

52 The Crown submits that the offence is not at the bottom of the range of offences of this type but is somewhere between the bottom and mid-range level of gravity. In my opinion, in the circumstances that I have described, including the fact that it was the deceased who brought the knife to the scene and where the offender inflicted only one stab wound after he himself had been stabbed 3 times by the deceased, it seems to me that the offence falls at the bottom of the range of offences of this type. I am strengthened in that view by a similar assessment of Fullerton J in R v King [2007] NSWSC 1134 at [23]-[24] and Adams J in R v Hamilton at [32] in somewhat similar circumstances.

53 In this regard, consideration must be given to the matter of the disappearance of the deceased’s car keys. That gives rise to the question whether post-offence events may be taken into account in assessing the objective seriousness of the crime itself. Johnson J had occasion to discuss this issue in R v Wilkinson(No 5) [2009] NSWSC 432 in circumstances where a person who pleaded guilty to murder not only refused to say where he had disposed of the deceased’s body but made false statements to the Police about where the body was to be found. Johnson J said this:

[61] … [T]he 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].

[62] However, the Offender’s subsequent false statements to police and others concerning the whereabouts of the body cannot, in my view, be taken into account in an assessment of the objective seriousness of the murder itself. Nor can his failure to reveal the true whereabouts of the body: R v Cavkic (No. 2) at [134]. Undoubtedly, such post-offence conduct may bear upon the Offender’s lack of remorse and contrition and his prospects of rehabilitation: Charara v Director of Public Prosecutions (NSW) (2001) 120 A Crim R 225 at 223-224 [37]-[40]; Douar v R (2005) 159 A Crim R 154 at 179 [131]; Weininger v The Queen [2003] 212 CLR 629 at 638-640 [25]-[32].

54 The significance of the disappearance of the deceased’s car keys concerns his ability to have driven the car to obtain assistance for his injuries.

55 In the light of the post-mortem report it cannot be said that the inability of the deceased to drive his motor vehicle had any bearing on his death. The post-mortem report concluded that death would have occurred within about 5 to 10 minutes of the stab wound being inflicted. The offence of manslaughter was, therefore, complete when the deceased was stabbed. There can be no suggestion of death having occurred by reason of any failure on the offender’s part to obtain assistance for the deceased or to enable him to seek it.

56 I cannot be satisfied to the requisite standard that the offender was aware that the deceased had sustained serious, let alone potentially life threatening injuries, in the light of the evidence about the deceased’s condition at the time when the offender and the others left the scene.

57 Accordingly, if the offender disposed of the car keys, although that might be a circumstance of aggravation, it cannot be taken into account in an assessment of the objective seriousness of the offence itself.

58 It must next be determined if the offender was responsible for the disposal of the keys. I am satisfied beyond reasonable doubt that he was. A few matters point to this. First, he volunteered this information to Ms Dower at the hospital. Coupled with that was the fact that the keys were missing at the scene and were not able to be found in a search. Secondly, on both the accounts of Jason Horton and Shannon Toohey, Jason Horton did not alight from Ms Toohey’s car at any time. The only time Ms Toohey possibly went near the deceased’s car was when she went to the offender’s assistance to bring him back to her car. Nobody else was present at the scene.

59 The disposal of the keys must be regarded as an aggravating circumstance of the offence. It is not without some significance because it must have increased the apprehension and fear in the deceased in not being able to attempt to drive himself to obtain assistance, even if it is accepted that he is likely to have died a very short time after being stabbed.

Other aggravating features

60 The Crown points to a number of other matters which are said to be aggravating features of the offence. The first and most serious of these is that the offence was committed whilst the offender was on parole from the offence of assault occasioning actual bodily harm. There can be no doubt that commission of an offence whilst on conditional liberty is a matter of serious aggravation: R v Fernando [2002] NSWCCA 28 at [40]-[42]. Whilst this is a matter which must be taken into account as an aggravating factor pursuant to s 21A Crimes (Sentencing Procedure) Act 1999, its seriousness in the present case is mitigated to some extent by the fact that this was not a planned crime and arose only in response to a serious attack by the deceased upon the offender.

61 The Crown also points to the fact that a knife was used by the offender. I have noted already, however, that it was not the offender who brought the knife to the scene but the deceased. Although the offender used the knife on the deceased when there were other avenues available to him to protect himself, the use of the knife is of lesser significance in all the circumstances of this offence: R v Hamilton at [34].

62 The Crown also relies upon the fact that the offender or those with him disposed of the ignition keys from the deceased’s vehicle and, in addition, failed to disclose to anyone in authority that the deceased was wounded and in a relatively isolated area. I have discussed above the matter of the disposal of the keys and the fact that I regard it as an aggravating factor. In the light of the post-mortem report I am not persuaded that the failure to disclose the deceased’s whereabouts can be regarded as an aggravating factor.

Sentence

63 I am satisfied that no other sentence than a period of imprisonment is appropriate.

64 I have had regard to what was said in the report from the Probation and Parole Service and to the evidence of Ms Mercier in relation to the offender’s prospects of rehabilitation. Although the report from the Probation and Parole Service noted that his general response to supervision over the years has been mixed, the major concern to the Service was his earlier failure seriously to address his problematic drug abuse.

65 I have already said that I accept Ms Mercier’s evidence concerning the changes that she has observed since the offender was released from gaol on bail in September 2009. Although I have some concerns that the birth of his son was not itself enough to bring about a change in his approach to drugs and alcohol, and although it is of some concern to me that he did not give evidence at the sentencing hearing, I regard his prospects for rehabilitation as being fair. In that regard I note particularly the view of the Probation and Parole Service that his conduct in the community during his last period of conditional bail and since his recent return to custody have suggested that he is able to change his ways.

66 Furthermore, the recent report from the Probation and Parole Service considered that the offender was suitable for a medium/high level of intervention by the Service. This itself showed an improvement from an earlier assessment by the Service on 15 January 2008 where he was assessed as unsuitable for supervision by the Service because of unreliability.

67 In the light of his past history I consider that he will need the assistance of the Probation and Parole Service and the supervision it will provide to further his rehabilitation. For those reasons I find special circumstances in relation to the proportion between the non-parole period and the head sentence.

68 As noted earlier, the offender pleaded guilty to manslaughter on the second day of the trial after the jury had been empanelled. I was informed by Mr Campbell without objection from the Crown that discussions in relation to a plea were well advanced and as a matter of utility it was decided to empanel the jury so that the whole panel was not inconvenienced.

69 Against that I was taken to an affidavit of a Deputy Senior Crown Prosecutor who had appeared in the matter at the committal hearing. It appears from that affidavit that an opportunity was given to the offender at that stage to offer a plea of guilty to manslaughter but a decision was made by him to proceed to trial.

70 The trial was fixed for a period of 3 weeks with perhaps 30 witnesses. Although there is no doubt that the Crown had to prepare fully for the conduct of that trial I consider that there should be a discount of 15% for the utilitarian value of the plea when it was made: Collon v R [2009] NSWCCA 187 at [40]-[47]; R v Williamson [2208] NSWSC 686 at [37]; R v HT [2010] NSWSC 324 at [33]; R v Scott David Lynn [2008] NSWSC 1122 at [1] and [24].

71 The offender was returned to custody on 9 December 2008 bail refused. His parole was then revoked and he served the balance of his earlier sentence of 31 weeks and 5 days to 19 July 2009. The question then arises what if any part of that period in custody should count as part of the sentence he is to serve in prison. The Crown does not submit that no credit should be given for the period where he served out the balance of his earlier sentence. Mr Campbell submits that he went into custody in December 2008 not because his parole was revoked but because bail was refused. Subsequently his parole was revoked. In those circumstances he submits that I should give the offender credit for the full period that he served out the balance of his earlier sentence.

72 I have noted what was said by Simpson J (with whom James and Hall JJ agreed) in Callaghan v R [2006] NSWCCA 58 that there is no clear rule, and that the backdating of the offence being sentenced is a matter of discretion. In the present case, I think there is some significance in the fact that this was not a planned crime that occurred in the circumstances which I have earlier described where the offender was attacked in a serious manner with a knife.

73 Although I accept that the crime for which the offender has been convicted was not a planned crime, since the offender was on parole he had some responsibility not to place himself in a situation that involved law breaking. Both Ms Toohey and the offender’s brother Jason understood that the meeting to which they accompanied the offender in the middle of the night in a remote location was for some sort of deal that involved or might have involved drugs from a person that Jason Horton knew to be a drug dealer and in circumstances where Jason saw the offender with a roll of money. The deceased took with him to the meeting heroin inside the back of a hairbrush, a place he was known to keep it. The offender admitted to Sergeant Turner that it was a drug deal.

74 Bearing in mind the totality principle discussed in Mill v The Queen (1988) 166 CLR 59 at 63 I consider it appropriate to give credit for 26 of those weeks.

75 At the expiration of the earlier sentence the offender was held in custody bail refused from 20 July 2009 to 24 September 2009. He then remained at liberty on bail until he returned to custody bail refused on 16 June 2010 when he was convicted.

76 Giving credit for all of these periods, the sentence I am about to impose will commence on 9 October 2009.

77 Lucas William Gregory Horton for the offence of the manslaughter of David Wayne Betwell I sentence you to a non-parole period of imprisonment of 2 years commencing on 9 October 2009 and expiring on 8 October 2011, and the balance of the term of 2 years 3 months commencing on 9 October 2011 and expiring on 8 January 2014. The earliest date on which you will be eligible for release on parole will be 8 October 2011.

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