R v Kennedy

[2008] NSWSC 703

CITATION:	R v Ian David KENNEDY [2008] NSWSC 703
HEARING DATE(S):	20 June 2008
JUDGMENT DATE :	11 July 2008
JUDGMENT OF:	Fullerton J
DECISION:	1. I sentence the offender to a non-parole period of 4 years commencing on 28 July 2006 as the date of arrest and the commencement of pre-trial custody and expiring on 27 July 2010 with a balance of term of 2 years expiring on 27 July 2012. 2. The earliest date upon which the offender is eligible to be released to parole is 27 January 2010.
CATCHWORDS:	CRIMINAL LAW - sentence - manslaughter by unlawful and dangerous act - intoxication and underlying brain damage - prospects of rehabilitation - finding of special circumstances
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	R v Forbes [2005] NSWCCA 377; 160 A Crim R 1 R v Hamshere [2005] NSWSC 1319 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Israil [2002] NSWCCA 255 R v Pitt [2005] NSWCCA 304 R v Way [2004] NSWCCA 131; 60 NSWLR 168
PARTIES:	Ian David Kennedy (Offender) The Crown
FILE NUMBER(S):	SC 2007/322
COUNSEL:	S Siva (Offender) P Lynch (Crown)
SOLICITORS:	Jeffreys & Associates (Offender) Director of Public Prosecutions (Crown)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

FULLERTON J

11 JULY 2008

2007/322 R v IAN DAVID KENNEDY

JUDGMENT

1 HER HONOUR: On 5 May 2008, the Crown presented an indictment charging the offender, Ian David Kennedy, with the murder of Hassan Youssef. The homicide was alleged to have been committed on 29 June 2006. The cause of death was the combined effects of blunt force injuries to the head of the deceased and multiple stab wounds to his upper back.

2 On arraignment the offender pleaded guilty to manslaughter. By his plea he acknowledged responsibility for the death of the deceased. The Crown did not accept the plea of guilty to manslaughter in discharge of the indictment and the matter proceeded to trial. It was not in issue that the offender struck the deceased to the head and stabbed him in the back and that, in combination, these injuries resulted in the death of the deceased. The single issue in the trial was whether the Crown could establish that in so doing he had either an intention to kill or an intention to inflict grievous bodily harm.

3 At trial the Crown did not contest the fact that at the time the fatal wounds were inflicted the offender was heavily intoxicated by the combined effects of drugs and alcohol. The Crown submitted however that notwithstanding the effects of intoxication he had the capacity to form, and did in fact form, the relevant intent to support a conviction for murder.

4 On 16 May 2008, the jury returned a verdict of guilty to manslaughter. The offender’s reduced culpability for the death of the deceased, by reason of the combined effects of drugs and alcohol, is reflected in the jury’s verdict. The maximum penalty for this offence is 25 years imprisonment.

5 Having regard to the manner in which the trial was conducted, it was common ground between the parties on sentence that the offender should be sentenced on the basis that his unlawful and dangerous act, constituted by the assault and wounding of the deceased, caused his death in circumstances where, due to a combination of the offender’s level of intoxication and by virtue of pre-existing brain damage, he did not form the intent to kill or cause grievous bodily harm.

6 Associate Professor Starmer, a pharmacologist, gave evidence at trial of the likely effects of intoxication upon the offender’s mental and emotional functioning at the time of the offence. There was also uncontradicted evidence from Dr Lowe, a consultant neurologist and opthalmic surgeon, that at the time of the killing the offender suffered from an undiagnosed organic brain disorder. This was said to be the probable outcome of the sustained use of intoxicants over many years, and was also said to have impacted adversely on his capacity to form an intention to kill or to inflict grievous bodily harm. Dr Lowe’s evidence was corroborated by psychometric and neuropsychological testing. I will return to consider this evidence for sentencing purposes in due course.

Relevant Facts

7 I am satisfied on the evidence led at trial that both the offender and the deceased were regular users of illegal drugs including cannabis and amphetamine-based drugs and, in the case of the offender, that he had been a regular user of illegal drugs of various kinds for many years. He was 40 years old at the time of the offence.

8 I am also satisfied that both the offender and the deceased consumed alcohol as a component of their polydrug use and abuse on a regular basis. For his part, the offender was also taking methadone to address a longstanding heroin addiction which appears to have been in remission at the relevant time. His use of other illegal drugs and alcohol whilst a participant in a methadone program serves to emphasise the chronic state of his addiction.

The relationship between the deceased and the offender

9 As at 29 June 2006, the deceased was a tenant of a two-bedroom Housing Department unit at 59/314 George Street Waterloo. He was a recipient of social security payments. He was aged 56 years at the time of death. About three months before the date of the offence, the offender took up occupation of a spare bedroom in the deceased’s unit. He was working as a carpet layer at this time, albeit only sporadically as a result of his drug and alcohol addiction. He was also in receipt of social security payments.

10 Aside from occasional and relatively minor domestic issues there was no observed or reported animosity between the deceased and the offender. They were in fact seen amiably enough in each other’s company by a neighbour within hours of the fatal assault. This evidence is not unimportant since it is interposed between the time when the offender left the company of fellow drinkers at a local hotel and purchased and used the drug ice, and when he rejoined them and became embroiled in a fight that led him back to the unit where he had the fatal confrontation with the deceased.

11 The Crown did not posit any motive for the killing. It was common ground that the assault that resulted in the deceased’s death was triggered by a trivial dispute over where the offender’s television should be accommodated in the unit. I am satisfied that his insistence that the television be housed in the offender’s room not only resulted in the offender physically attacking the deceased but that the offender did so in an irrational and wholly unbridled manner. The extent to which his reaction to the deceased’s request, or even his demand of him, is explained by the effects of drugs and alcohol was the subject of extensive analysis by the expert witnesses at trial.

The day of the offence

12 I am satisfied that on 29 June 2006, the day the deceased was killed, that both men had consumed alcohol and illegal drugs, although in different quantities and not consistently in one another’s company.

13 By his own admission (as corroborated by witnesses called in the Crown case) the offender started to drink beer at about 6.30 am in a local hotel, a day when social security payments were apparently directly credited to his bank account permitting him access to funds that he was able to expend at will as a recipient of social security. He was, on any view, well affected by alcohol by early afternoon. The offender estimated he had consumed between 10 and 15 schooners of beer. While his account of the amount of alcohol he consumed before the fatal confrontation with the deceased has varied in the history he has supplied to a number of expert witnesses for the purpose of the preparation of reports of various kinds, the fact that he was heavily intoxicated at a time proximate to the likely time of the deceased’s death is corroborated by two independent witnesses.

14 According to the offender’s account to police, during the course of the afternoon, and at a time when he was already subject to the effects of alcohol, he returned to the unit where he gave the deceased a small amount of the 100 milligrams of the amphetamine-based drug “ice” he had recently purchased. The offender said he consumed the rest by injection. The toxicology report obtained as part of the autopsy procedure confirmed the presence of alcohol, a high concentration of morphine, cannabis and a range of other pharmaceutical drugs in the deceased’s blood at the time of death. There were also a number of syringes and other drug-taking paraphernalia found by police at the deceased’s unit.

15 Associate Professor Starmer gave evidence of the likely effects of intoxication on the offender by his having consumed a cocktail of alcohol and ice. He explained that alcohol fluidises membranes in the central nervous system and allows a range of hormonal interchanges to occur. Dependent upon the amount of alcohol consumed, the period of time over which it is consumed and the lean body mass of the person, alcohol will be productive of varying degrees of drunkenness. In the case of this offender, Associate Professor Starmer estimated that the concentration of alcohol in his blood at the time of the killing fell within the range of 0.19 and 0.36, depending upon whether he had consumed 10 or 15 schooners of beer and dependent upon his body weight being 70 or 80 kilos. The professor confirmed what is perhaps obvious, namely that aggression and violence are frequently associated with alcohol use and abuse. He also gave evidence as to the effects of crystallised methylamphetamine (“ice”) which he says is a particularly pure and potent form of the drug methylamphetamine. He said that that drug mimics the action of the natural hormones raw adrenaline and dopamine, the latter effecting body movement. He said people using the drug can react more violently to a set of circumstances where, were they completely drug-free, they may not have reacted at all.

16 Associate Professor Starmer spoke of the way in which a person using both drugs and alcohol to excess can build a tolerance to the drugs. It would appear from the amount of alcohol that the offender consumed preceding the assault, namely something in the order of 10 to 15 schooners of beer, and something in the order of 100 milligrams of methylamphetamine, that he had a high tolerance to both drugs. Associate Professor Starmer also confirmed that alcohol is a central nervous system depressant and methylamphetamine is a central nervous system stimulant and that when the two are combined they may interact with each other such that the person may appear less intoxicated by alcohol than the amount of alcohol actually consumed.

The police investigation

17 The investigation into the homicide commenced on 21 July 2006 as a result of Ms Amber Cordez reporting to police that the offender had confided in her the previous day that he had killed the deceased some weeks earlier. At this time the police were unaware of any homicide or possible homicide. There was no report of the deceased as a missing person. (I also note that within what must have been a very short time after the deceased’s death, the offender telephoned a woman in whose company he had been earlier in the day and told her that he had killed a man and needed somebody to talk to. She did not, however, take the call seriously and did not go to the police because in her words she “thought he was talking rubbish” and that he was just trying to attract her attention).

18 On 26 July 2006, 27 days after the death of the deceased, police gained entry to the deceased’s unit. The deceased’s body was located slumped over a chair in one of the bedrooms, wrapped in a doona which was in turn tied with masking tape.

19 On 28 July 2006, the offender was arrested, interviewed and charged with murder. He gave police a detailed account of the events of the day leading up to and including the deceased’s death. The account was however was infected by confusion and some internal contradiction. He also gave a detailed account of his movements thereafter and of his state of disbelief at times of relative sobriety at having killed his friend. He told of his horror at the realisation of what he had done when he returned to the unit over successive weeks and was confronted with the progressively decomposing body of the deceased. He told Dr Allnutt that he did not stay in the unit during this time but slept in a garage at the rear of the units.

20 I am satisfied that it was the offender’s compromised capacity to recall with clarity both the events that culminated in the fatal assault and the sequence in which the injuries were inflicted, as distinct from any attempt on his part to conceal what he did or to avoid responsibility for his actions, as the explanation for the inconsistency between his version of events to police on arrest and the results revealed on autopsy (to which I will refer shortly).

21 It is important to emphasise that I am also satisfied that despite the offender’s inability to explain the timing or order of some of the events leading up to and including the assault on the deceased, and despite the incongruities between his account of the how the injuries were inflicted and the forensic evidence, there was no attempt on his part to minimise his actions or to create a scenario where the deceased bore any responsibility for the assault. To the contrary. I consider that the course and content of the interview which extended over many hours demonstrated a concerted effort on his part to give a candid and comprehensive account of his conduct (as he was able to recall it), including the confronting details of his attempts to deal with the deceased’s decomposing body over the course of many weeks, and his ultimate decision to wrap and tie the body to prevent the spillage of body tissue and fluids. I accept that his conduct at the time of the killing, including the way in which he dealt with the body, reflected a disordered state of mind and not a morbid or perverse fascination with the crime or the crime scene. I accept that the offender was genuinely struggling with how to deal with the consequences of his actions. I accept that he was unable to deal in any responsible way with the body of the deceased. He is not to be punished for this since it does not, in the particular circumstances of this case, aggravate the objective criminality constituted by the killing. He told police that he had vague thoughts of trying to get rid of the body somehow but he could not do it. He said that he was just waiting to “get caught”.

22 I am also satisfied that the detail provided by the offender in the record of interview reflected a disarming degree of acceptance of criminal responsibility for the death of the deceased. This, in addition to his preparedness to plead guilty to manslaughter in 2007, and again on the first day of the trial, is entirely consistent with genuine remorse and contrition. I propose to give this appropriate weight in the calculation of sentence together with some additional allowance for the fact that despite having confessed to Ms Cordez that he had killed the deceased (a confession which he delivered in a floridly agitated state), without his full and frank admissions, the police investigation would have been hampered and the case against him not as overwhelming as it proved to be.

The forensic evidence

23 Upon autopsy, Dr Duflou, confirmed that the body of the deceased was in a state of advanced decomposition. Despite the obvious limitations that this imposed, extensive fractures to the skull, the cheekbone and the mandible were revealed. Dr Duflou also reported a fracture of the hyoid bone, multiple fractures to ribs and three stab wounds on the deceased’s upper back. The wounds measured approximately 8cm, 5cm and the third slightly less than 5cm. One of the wounds penetrated the deceased’s lung, albeit only slightly.

24 It was Dr Duflou’s opinion that the deceased was killed by a combination of blunt force trauma to the head and stab wounds. He was of the certain view that none of the injuries in isolation would have been fatal.

25 It was also Dr Duflou’s view that the extensive fracturing to the skull, which passed in a single fracture line across the back of the head ending at the left temple, was sustained in an area where the skull had been previously opened surgically and had since healed. He accepted that the surgery to the skull rendered that area of the deceased’s anatomy more vulnerable to trauma. Dr Duflou also gave evidence that the fracturing of the mandible was associated with extensive bruising to the soft tissues of both the face and skull in that region. The fractures to the ribs were in a line.

26 Essentially, in Dr Duflou’s view, the complex of injuries to the skull were likely to have been sustained as a result of a large, heavy, flat and featureless object (like a television) being applied under force to the head. The fracture to the hyoid bone was also likely to have been sustained as a result of direct trauma with a large heavy object as there was no indication of strangulation or a similar mechanism. However, Dr Duflou favoured the probabilities that the head was on a hard surface like the ground at the time the injuries were sustained. He did not regard any of the injuries to the skull or the ribs as having been sustained by the deceased falling. He was firmly of the view that it was unlikely that any of the fractures, or any extension of the fractures, were sustained post-mortem.

27 In short, while he did not regard the injuries as consistent with the deceased being upright and having a television thrown at him, he did regard it as possible for a single blow to the head to have caused the spread of injuries he observed in the region of the head. The rib fractures being on both sides of the body were also consistent with the deceased being on the ground at the time force was applied to the chest region and that this was likely to have been a separate episode of trauma. So far as the stab wounds were concerned, he considered that they were likely to have been applied with moderate force. He noted that the knife did not penetrate the bony structure of the back to any extent.

28 Although the offender claims deficits in his memory of the night, he claimed to remember that at one stage he picked up the television and threw it at the deceased and that the deceased fell to the ground. The offender said that the deceased then got up and that it was only then that he lunged at him with a knife and stabbed him.

29 The scientific officers who attended the unit located many areas of blood staining throughout the living area and in the bedroom where the deceased’s body was found. They also located the knife used to inflict the stab wounds and the damaged television set. This evidence, whilst serving to locate in general terms the site of the stabbing and the assault with the television, did not advance the Crown case at trial as to the order in which the injuries were inflicted or the precise mechanism and the degree of force that was used.

30 I am satisfied that the offender’s account of the attack is unreliable and unacceptable since it is in large measure inconsistent with the forensic evidence. While I do not consider that he has deliberately set out to deceive police or minimise his responsibility for the deceased’s death, the fact remains that the spread and severity of the injuries that were revealed on autopsy, and the spread and pattern of blood in the unit, were consistent with a brutal and unprovoked attack. I accept however that the objective gravity of the offence is diminished by the fact that there was no entrenched animosity between the two men and that the fatality is largely, if not wholly, due to the offender’s state of intoxication and his diminished ability to control an outburst of aggression, as distinct from his conduct being the result of deliberation. The jury verdict is consistent with that view. The fact that within a very short time of arriving at the unit where the confrontation with the deceased erupted into violence, the offender was involved in another physical altercation with a man he was drinking with fortifies my conclusion that the offender was exhibiting recognised hallmarks of alcohol-fuelled aggression, likely to have been exacerbated by his having injected ice.

The expert evidence

31 Associate Professor Reid, who gave evidence at trial, is a professor of neuropsychology at the Prince of Wales Medical Research Unit. He performed a neuropsychological assessment of the offender. Importantly, he was provided with a PET scan of the offender’s brain prepared by Dr Lowe, a neurologist, and interpreted by a specialist radiologist, Dr Choong. The scan confirmed organic brain damage. He was also provided with a copy of a report from Associate Professor Starmer, to whom I have already made reference, and the results of psychometric testing undertaken by Mr Diamond. Additionally, he was provided with reports from two psychiatrists, Dr Allnutt and Dr Westmore.

32 The purpose of the neuropsychological assessment was to examine the offender’s cognitive function in order to determine whether he suffered from any impairment of the brain consistent with the neurologist’s findings of brain damage. Associate Professor Reid came to the view that the offender was a man of average intellectual ability and that, despite the organic brain damage, there was no significant impairment of his intellectual functions. The specific deficits revealed on neuropsychological assessment were in the areas of memory and cognition. It was the professor’s view that the abnormalities were permanent when the offender’s current functioning was compared with his pre-morbid intellectual ability. While Associate Professor Reid was unable to find any objective evidence of poor impulse control, he noted that the offender’s descent into serious drug and alcohol abuse from an early age was, from a behavioural perspective as distinct from the test data, at least partly explained by volitional defects.

33 Dr Lowe, a consultant neurologist, considered the results of the testing undertaken by Mr Diamond and Associate Professor Reid and regarded the test results as consistent with the abnormalities in the brain revealed on the PET scan. In Dr Lowe’s view, the abnormalities were related to impulse control. He described this as the degree to which inhibition and disinhibition co-relate. He regarded the likely behavioural display reflected in the offender’s conduct on the day of the killing as not uncommon in a person after 20 years of alcohol and drug abuse. He regarded the organic brain damage and the associated tendency to disinhibition as likely to be accentuated by the effects of alcohol and other drugs. He said:

“…if you have an underlying basis of that you just have to add alcohol and drugs on top of that and that would obviously trigger or accentuate any underlying change..”

34 Dr Lowe was also of the view that in a state of disinhibition, a person’s capacity to appreciate and rationalise surrounding events is compromised. He offered the opinion that this was a dominant factor in the circumstances leading up to, and immediately proximate to, the death of the deceased.

35 Dr Allnutt, a forensic psychiatrist, was called by the Crown at trial. He was provided with Dr Lowe’s report and a report by Dr Westmore, a colleague. Dr Allnutt was of the view that the offender’s drug-taking prior to, and at the time of the offence, would likely impact on his mood and was likely to mask anxiety and depressive symptoms, although in Dr Allnutt’s view these symptoms were relatively mild.

36 For sentencing purposes, the importance of Dr Allnutt’s evidence is that in his view alcohol was the most significant factor that was operating on the offender at the relevant time. He said:

“... alcohol is a very well known disinhibitor, a well known disinhibitor. It’s well known to reduce people’s capacity to control their behaviour. It is correlated with increased risk of aggressive behaviour and there is also a risk of blackouts when intoxicated.”

37 Dr Allnutt did not regard the multiplicity of injuries of the deceased as indicating anything as to the offender’s state of mind at the relevant time. He deferred to Dr Lowe’s expertise with respect to the diagnosis of brain damage and accepted that the effects of intoxication were likely to exacerbate any of the cognitive problems that may present from that condition. He also agreed that, in the given circumstances, the underlying brain disorder could further act as a disinhibitor. He confirmed the content of Dr Westmore’s report to the following effect:

“As a psychiatrist, however, I can state that individuals who suffer brain damage, individuals who were affected by drugs and alcohol and individuals who are highly aroused may all experience alteration in their levels of intent when they act in certain ways. Mr Kennedy was affected by all those factors, I believe, at the time of the homicide.”

38 In short, in Dr Allnutt’s view, the most significant factor in the offender’s behaviour at the time of the homicide was intoxication.

An assessment of the offender’s mental state and degree of intoxication for sentencing purposes

39 Given the precipitating history of sustained polydrug abuse over many years, the significant quantities of alcohol and ice the offender consumed on the day of the offence and the expert evidence to which I have just referred, I can come to no other conclusion but that the offender assaulted and killed the deceased in an altered mental state which impacted upon his judgment and capacity to control his impulses and to a lesser degree his cognitive capacity by reason of brain damage.

40 In R v Israil [2002] NSWCCA 255, Spigelman CJ reviewed the authorities bearing upon the interrelation between impaired mental capacity and criminal responsibility. In this connection he cited the observation of Wood CJ at CL in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]:-

“… the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive faculties or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which, although falling short of avoiding criminal responsibility, does justify special consideration upon sentencing.”

41 In R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [187], the Court of Criminal Appeal stated,

“Some of the relevant circumstances which can be said ‘objectively’ to affect the ‘seriousness’ of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of motivation … mental state (for example intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, insofar as the offender’s capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected … such facts can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment …”

42 In the present case, however, there is a confluence of drug and alcohol addiction and related brain damage which, in my view, is not productive of the same considerations as those to which his Honour the Chief Justice refers. That is not to say that the offender’s brain damage is rendered irrelevant. Dr Lowe’s evidence is supportive of there having been some degree of causality between the underlying condition and the loss of self control. That said, I am satisfied that the overwhelming explanation for the assault was the offender’s self-induced intoxication.

43 In summary, while the offender’s intoxication is relevant to an assessment of the extent to which his actions were the product of deliberation (and in this case I am satisfied that there was no premeditation of any kind) his drug and alcohol use over an extended period of years, to the extent that it culminated in such a loss of control as to result in the loss of life, is not such as should elevate considerations of leniency above those which dictate the imposition of a sentence that reflects appropriate measures of punishment and retribution. An unbroken line of authority in this Court when sentences for manslaughter or murder are imposed or under review emphasises that the taking of human life is regarded by judges, as it is by the community, as a matter that calls for salutary judgment and denunciation.

44 It is also well recognised that while reference to decisions where sentences for manslaughter have been imposed assists in providing a frame of reference, much depends upon the particular features of each case (R v Forbes [2005] NSWCCA 377; 160 A Crim R 1 at [189]-[190]). Given the acknowledged difficulty of establishing a sentencing pattern, comparisons between cases where the legal and factual basis for the manslaughter are similar are likely to be the most useful.

45 I have been assisted in that regard by a schedule of cases prepared by Mr Siva, counsel who appeared at trial and on sentence, with a brief summary of the facts and the salient features of each offender. It is not necessary to refer to them all save as to say that the case of R vHamshere [2005] NSWSC 1319 has similarities to the present case. A matter of important distinction however is the fact that in Hamshere the fatality was the result of a single stab wound delivered in the course of a drunken fight between friends that escalated out of control whereas, in the present case, I am satisfied that the attack was unprovoked and involved sustained and separate acts of violence in circumstances where it would appear that the deceased was relatively defenceless. In addition, Hamshere pleaded guilty at the first opportunity (a plea that was obviously accepted by the Crown) and received a 25 per cent discount. Those differences aside, the sentence imposed in that case – namely a non-parole period of 3 years against a term of 5 years – in the context of a range of sentences extending upwards from that point does provide some frame of reference for the imposition of sentence in the present case.

Criminal record

46 The offender is a 42 year old man. His criminal record showed a number of property offences commencing in 1979 when he was about 13 years of age, a period shortly after his parents separated. No offending was recorded between the periods of 1989 to 1993 and 1997 to 2002. Since 2002, the offender has been convicted of minor drug offences, a malicious damage offence and a shoplifting offence. The only prior offence involving violence was that of an assault occasioning actual bodily harm in 1996 which resulted in him being sentenced to a community service order. The offender has only served one period of custody being 6 months imprisonment which commenced on 25 September 1996.

47 In the circumstances, while he is not entitled to be sentenced as a person of prior good character, I do not regard the criminal record as a matter aggravating the sentence to be imposed.

Subjective circumstances

48 The offender was born in England and came to Australia with his family when he was five years old. His parents separated shortly thereafter. In a report furnished by Mr Andrew House, a Drug and Alcohol officer with the Department of Corrective Services, the offender reported that his early years were unstable and confusing. This is corroborated by the evidence of his mother who details domestic violence and disruption of the family unit as a result of an abusive partner. The offender commenced drinking alcohol and using drugs when he was 12. At 26 he progressed to heroin with which he has had an ongoing battle with over many years.

49 The offender has apparently used both drugs and alcohol as some form of escape from the realities of his emotional life. Mr House observed that it is common amongst people who suffer from alcoholism and other drug addictions that the effects of the drug create the illusion that the addict has discovered his true self.

50 It is of some concern to me that the offender was first seen by the Alcohol and Other Drug Services at Long Bay as recently as 26 May 2008 for the purposes of the preparation of a report. I am however encouraged by the fact that he has self-referred to the services since that time and has expressed an awareness of the extent of his addiction and its devastating consequences and a willingness and a desire to be drug-free. Mr House notes that the offender has made several attempts to address his addiction in the past by attending Odyssey House and William Booth House, although it would appear that his attempts at remaining drug-free were relatively short-lived. Although he informed Mr House that his self-esteem and self-worth improved when he was drug-free he was unable to sustain his abstinence. He said he was at a loss to explain his relapse. Mr House observed that where a person suffers from poor self-esteem and self-worth success is often difficult to cope with and, in the result, that sustained recovery is less likely to be achieved within the first few attempts and that relapse itself appears to be part of the recovery process.

51 Mr House was of the view that:

“Mr Kennedy would benefit from continued intervention and an opportunity to engage in further counselling and groups to increase his awareness and take responsibility for himself and attempt to rehabilitate himself with the help of the competent and dedicated staff within Corrective Services. It is my recommendation that Mr Kennedy continue AOD counselling whilst incarcerated and attend the Ngara Nura pre-release program when that time comes and when released that he continue his treatment and transition into the community through Glebe House as well as follow the direction of Community Offender Services.”

52 I should also note that whilst the offender has lived independently of his family since he was 16, he has the support and love of his mother and his sister and since his incarceration has had regular jail visits with them. His mother gave evidence before me and confirmed the content of her letter to me where she said:

“…since he has stopped using drugs and alcohol we have witnessed Ian becoming a loving son and brother again who realises that when you commit a crime like this the whole family serves the sentence. At the end of his jail sentence his family will be here for him.”

53 I can only hope that the offender honours the support that his family has given him over the last two years and that he appreciates the extent to which he will not only harm himself but his family should he relapse into drug and alcohol dependence and the lifestyle that that entails.

Mitigating factors

54 Mr Siva submitted that there are a number of mitigating factors arising under s 21A of the Crimes (Sentencing Procedure) Act 1999 which count in favour of the offender with regards to sentence. I am satisfied with regards to s 21A(3)(g) that this offender is unlikely to re-offend. Despite a dissolute life over the last two decades, a way of life that is explained largely by reason of his vulnerability to drugs and the social dislocation that that entails, I am satisfied that the uncontrolled violence that is reflected in this offence was out of character. While the pressures of the trial have themselves (and understandably) been productive of stress and some deflection from a future focus I am prepared to proceed to sentence on the basis that the offender is in the process of gaining a new and encouraging insight into his particular vulnerability to any resumption of drug and alcohol use on his release, having been confronted with the objective evidence of his irreversible brain damage causally connected to sustained drug and alcohol abuse over many years.

55 I am also invited to view the offender’s experience of custody as a remand prisoner for two years as a watershed in terms of his commitment to abstinence when at his liberty. This is said to be evidenced by his determination to lessen his reliance on methadone prior to his release in acknowledgment of the struggle he has had in the past to stay clear of other drugs even while subject to a methadone program. With some qualified confidence I proceed to sentence on the basis that his prospects for rehabilitation are good as provided for in s 21A(3)(h) of the Act.

Special circumstances

56 Applying the relevant principles to which I have earlier observed, I consider that the statutory ratio under s 44 of the Crimes (Sentencing Procedure) Act should be varied to give appropriate account to the need for the offender to receive ongoing treatment for his drug and alcohol addiction on his eventual release and to the community’s interest in his commitment to participating actively in programs designed to achieve that objective. In varying the statutory ratio I also take into account the need for the offender to adjust his future behaviour and his aspirations for a legitimate working life to the knowledge that he has permanent brain damage as a result of his drug and alcohol abuse, and that support from community-based services under the supervision and guidance of the Probation and Parole Service when he is released to parole will likely be more productive of a successful adjustment and transition than an extended period in custody (see R v Pitt [2005] NSWCCA 304).

1. I sentence the offender to a non-parole period of 4 years commencing on 28 July 2006 as the date of arrest and the commencement of pre-trial custody and expiring on 27 July 2010 with a balance of term of 2 years expiring on 27 July 2012.

2. The earliest date upon which the offender is eligible to be released to parole is 27 July 2010.
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