R v Krey (No 4)

[2021] NSWSC 826

Supreme Court

New South Wales

Medium Neutral Citation:

R v Krey (No 4) [2021] NSWSC 826

Hearing dates:

22 February 2021

Decision date:

07 July 2021

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

The offender is sentenced to a term of imprisonment comprising a non-parole period of 6 years and 6 months and a balance of the term of the sentence of 4 years and 6 months. The total sentence is 11 years, to date from 15 July 2017 and expiring on 14 July 2028. The offender will become eligible for release on parole when the non-parole period expires, on 14 January 2024.

Catchwords:

SENTENCING – Manslaughter – Substantial impairment – Where offender diagnosed with Foetal Alcohol Spectrum Disorder, Complex Post-Traumatic Stress Disorder and intermittent explosive disorder – Where weapon used – Where no motive – Where offence partly explained by offender’s substantial impairment of capacity to control – Whether mental conditions reduced moral culpability – Whether prospects of rehabilitation guarded without adequate mental health treatment – Whether finding of special circumstances appropriate – Where offender young – Where offender willing to plead to manslaughter

Legislation Cited:

Crimes Act 1900 (NSW), ss 23A, 24

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, Pt 4, Div 1A

Cases Cited:

Biddle v R [2017] NSWCCA 128

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

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Haines v R [2016] NSWCCA 90

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

Regina v AEM [2002] NSWCCA 58

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

Tepania v The Queen (2018) 275 A Crim R 233; [2018] NSWCCA 247

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

Category:

Sentence

Parties:

Regina
Billy Krey (Offender)

Representation:

Counsel:
G Tabuteau (Crown)
G Scragg (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s):

2017/215883

Judgment

1. HIS HONOUR: On 28 September 2020, Billy Krey was indicted for trial by judge alone before me on a count that on 15 July 2017 at Whalan in the State of New South Wales, he murdered Ioakima Sini. Following a trial lasting 13 days, on 18 December 2020, he was found not guilty of murder, but guilty of manslaughter: R v Krey (No 3) [2020] NSWSC 1811. A sentence hearing took place on 22 February 2021. Further written submissions were received after that date. I now deliver sentence for that offence. In this judgment, I will refer to Mr Krey as the offender and Mr Sini as the deceased.

2. The maximum penalty for the offence of manslaughter is imprisonment for a period of 25 years: s 24 of the Crimes Act 1900 (NSW) (“the Act”). Manslaughter is not an offence that has a standard non-parole period pursuant to Div A of Pt 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSP Act”).

The circumstances of the offence

3. An overview of the offence, as set out in the judgment on verdict, is as follows.

“17   [The offender] resided in Whalan at an address that I will identify with a pseudonym of Number 93, Coulter Street (‘Number 93’). It was a double-storey semi-detached townhouse, being the Western-most townhouse in a row of six that lay approximately East-West. To the South, the row backed onto Coulter Street. To the North was an unfenced grassed common area (‘the common area’). Facing onto the common area from the North was another row of townhouses, which backed onto a street that I will refer to as Warner Street.

18   A broad concrete footpath (‘the path’) ran through the middle of the common area in the same East-West configuration, with narrower paths radiating off to the North and South, to the entrances of the individual townhouses on both sides of the common area. To the West, the footpath crossed another of similar width that lay North-South. The path continued in an Easterly direction for at least a kilometre, through suburban Whalan.

19   The parts of the townhouses that faced their respective streets had fenced-in yards, so that although the dwellings bore the street addresses, in reality they were the back yards and the front of the two rows of townhouses were the sides that faced the common area. Number 93 had steps leading up to a small porch, where the entrance was located. There were windows on both sides of the door.

20   Resident with [the offender] were his girlfriend, AJ, who was aged 15 at the time, his mother, Renai Krey (‘Ms Krey’), and a brother, KK, who was aged six.

21   On 15 July 2017, which was a Saturday, [the offender] awoke at about 4pm in his bedroom on the first floor of his house, having been asleep since the night before. He awoke in an angry mood and almost immediately fell into an argument with his mother, apparently about a $50 note that he believed she had taken. They went downstairs to the living room. He stood over his mother, who was seated on a lounge, alongside KK. At one point, he raised his arm towards her, and she cowed with her hands over her head. AJ, who was seated behind [the offender], stood and tried to intervene by holding [the offender] in a hug from behind. He pushed her away, causing her to fall onto a coffee table. Ms Krey then left the house, taking KK and AJ with her. They walked in an Easterly direction along the common area, headed to a friend’s place.

22   [The offender] was seen by neighbours to emerge through the same entrance, look around and move about the outside of Number 93, then return inside.

23   The deceased resided in a house on the Northern side of Warner Street. At the time of these events, he was visiting the occupants of a house in Warner Street, which was opposite his and faced onto the common area. The principal resident of that house was Anne Marie Daniels, and the house was referred to in that micro-community as ‘Danielle’s house’. It was diagonally to the East of Number 93.

24   Ms Krey spoke briefly with the deceased as she walked past the vicinity of Danielle’s house. Shortly afterwards, the deceased was seen to walk to the door of Number 93 and knock. The deceased called out to [the offender]. [The offender] was seen at a window to the side of the door but did not open it. The deceased left and walked East along the common area. Shortly afterwards, [the offender] was seen to leave Number 93, walk East along the common area and meet up with the deceased. Witnesses saw [the offender] repeatedly stab the deceased. Some recollected them facing each other as this occurred, [the offender] repeatedly stabbing the deceased to his lower torso and chest. Others saw, at one point, the deceased with his back to [the offender], receiving blows to his back. Eventually, while the deceased was facing [the offender], he crumpled forward and to the side. Some witnesses said the deceased fell on [the offender], who also fell to the ground under the deceased. Other witnesses said that the deceased fell to the ground and then [the offender] straddled him, continuing to stab him. At least two neighbours approached the two men while this was occurring and described verbal and physical interactions with [the offender].

25   When confronted, [the offender] retreated towards Number 93, disappearing from sight from the common area down the Western side of Number 93, towards Coulter Street.

26   The deceased was unresponsive to first-aid efforts by members of the community. Police and paramedics arrived. He was taken to hospital and pronounced dead shortly afterwards. On all eyewitness accounts except one, the deceased’s body remained where he fell until it was removed by ambulance officers. That position which, it follows according to the majority of eye-witnesses, is where the deceased was stabbed, was adjacent to two apartments further to the East of Number 93. According to a scaled map, it was on a grassed area 2m South of the path and approximately 13m from the steps leading to the porch of Number 93.

27   Shortly afterwards, [the offender] arrived on foot at the house of his paternal grandfather, James Bobak, which was approximately 1.5km away in the neighbouring suburb of Emerton. Mr Bobak gave evidence that [the offender] told him: ‘I think I hurt someone’. [The offender’s] clothing was bloodied. Mr Bobak told [the offender] to have a shower and gave him fresh clothing. Shortly after [the offender] finished showering, the police arrived and arrested him. A toxicology report on a sample of [the offender’s] blood returned a negative result for alcohol and drugs, except for cannabinoids, but at a quantity that was so small it could not be quantified.

28   The post-mortem analysis revealed that the deceased had received 12 sharp force injuries. Four of these wounds had both entry and exit points, making 16 apparent wounds to the surface of his body; five to the back of his torso, seven over the abdomen, one to the left side of his face and three to his left arm. Only two of the wounds to the deceased’s torso caused ‘severe injury’, being one to the left side of the back which injured the deceased’s left lung and heart, and one to the right side of the back of the torso, which injured the right lung, right kidney and liver. Two of the wounds were 16cm deep and one was between 15cm and 18cm deep. The deceased had a blood/alcohol content of 0.232g of alcohol per 100ml of blood.

29   According to the autopsy report, the height of the deceased was 182cm and his body weight was 105kg. The height of [the offender] is 185cm, according to Justice Health records.

30   The stabbing of the deceased, in a public place in view of his neighbours and friends, was a traumatic experience for those who witnessed it. I note that the deceased’s high blood/alcohol content, which was more than four times the maximum blood/alcohol concentration for driving, may explain why he was unable to react defensively to the attack upon him by running away, fighting back or calling out for help.”

The interview by police

4. The offender was taken to a local police station and in the early hours of the following morning he was interviewed by police in the presence of a support person. The interview was recorded and an edited version was tendered into evidence. In the judgment on verdict, the content of the tendered interview in detail was summarised. For the purposes of this judgment, the relevant points are summarised as follows.

5. The offender said he went to bed about 11:00pm the night before and slept through until the following afternoon. He recalled yelling at his mother and AJ but did not remember what he had said. He thought the argument with his mother was about money but could not recall any further details. He was feeling angry:

“I just like woke up and I was in a bad mood or something and then mum said something … and then I got, like annoyed … I think it started from there.”

6. He said (deleting repeated words):

“I had a fight with mum and then … went outside, slammed the door and then mum went up to a friend’s house and then … the person who I stabbed … came over, was saying stuff, like, yeah, saying stuff … and I can’t remember really … I went, like, sort of … blacked out. I saw … the guy with two poles in his hand and then … I just left and then I seen the blood on the knife and then I just walked …”

7. He said:

“I had the knife out the front and I picked it up and I went for a walk … And I came back and [the deceased] was there yelling at me … Or something and he said that ticked me off and like everything just went black.”

8. When asked what the deceased had said to him, he replied:

“… something about f’n dog and … something else I don’t know a couple other things I can’t remember.”

“… I said … just not today, like, go away or whatever I said and then he just kept on goin’.

… I think he was comin’ over to come start with me ‘cause I think he was a bit drunk as well.”

“[The deceased] … was coming to me and swearing at me … And then I walked off and then he said something else and then, just, I went into black mode … Just everything went black and then I just, like, went back to normal and then I seen this guy with two, like bars in his hand … and then I looked at the knife and there was blood on it.”

9. The offender was also asked:

“Q. … how do you feel about what’s happened?

A. Bad about myself. Mmm.

Q. And what do you think about the victim? Can you tell me how you feel about that?

A. I feel, oh I don’t know. Words can’t explain what I did to him, yeah.”

10. Later in the interview, the offender said:

“I didn’t mean for anybody to get stabbed or dead.”

11. The offender was asked:

“Q. And what do you do when you get angry?

A. I normally go for a walk. Yeah. I go for a walk.

Q. Yeah? And, what happens then?

A. Then it just goes slowly down. Less anger and less anger, and it just goes away and then I just come back home.

…

Q. And … do you do anything else apart from go for a walk when you get angry?

A. Nuh, just go for a walk. Go to my pop’s or something. Yeah.”

12. The offender said he did not remember taking out his knife or stabbing the deceased and that he felt like crying, “Cause I didn’t want to hurt him”. When asked why he hurt the deceased, he responded: “I don’t know”.

13. The offender said he knew the deceased and that “I used to call him my uncle”, which was what everybody called him. He denied having had “any trouble” with the deceased previously. He said: “Oh, he’s an all right person when he wants to be but when he gets on alcohol and that”.

14. The offender said that he told his grandfather “I think I stabbed somebody”. He was asked: “Who did you think you stabbed?”. He replied:

“A. I don’t know … I just told pop that I thought I stabbed someone.

Q. … I realise that but in your mind did you actually think about who it was that you stabbed or could’ve stabbed?

A. I think it would’ve been [the deceased].

…

Q. OK. What made you think that?

A. ‘Cause that was the last person I remember seeing.

…

Q. And … from seeing [the deceased] standing in front of you and then you sort of blacked out of it, the next person you see is with the poles but there’s already blood on a knife. Is that the case?

A. Uh-huh.”

15. The offender said that the knife was near a “seat” at the “front of my house”. He had put it there “probably yesterday”. He did not know why he had done so. He demonstrated the length of the blade, which police estimated to be about 15cm. He described it as a “decorative knife” that he had bought from a tobacconist about a year before. He had previously stored it in his room, in a drawer. When he picked up the knife, he put it in his pants. His explanation for taking it with him was that he normally took a knife with him when he went for a walk, because “BFL boys and that, they’re always walkin’ around wanting to rob people, take people’s stuff and that”. He said that if that happened, he would:

“… pull it out in case one of the boys, like, try to start on me. … just show ‘em it … And if they keep on goin’ I’d run away, yeah.”

16. The offender said that he dropped the knife on his way to his grandfather’s place because it had blood on it and he might get “pulled up … didn’t want to get caught”.

17. The offender said that the only drug he used was marijuana, “once in a while”. He said he had smoked “two joints” the night before. He described its effect on him as follows: “It calms me down … Makes me normal, like I can think”. He said he drank alcohol, but the last time he did so was about three weeks previously. He was dependent on his mother financially. He left school in Year 9 or Year 10, in Armidale. He said that he could not write and his reading was “Not very good”.

18. The offender was asked about documentation police had retrieved from his grandfather’s residence that referred to him having an attention deficit hyperactivity disorder (“ADHD”). He was asked if he took medication for that condition and replied: “I stopped taking my pills”. He said that he was on “12 or 13 … pills a day [for all] sorts of different things”. He said he stopped taking them four years earlier, although I note that his grandfather, Mr Bobak, said that the offender stopped taking medication when he left his place to live with Ms Krey.

19. The offender said he had experienced blackouts before, but not for as long as this one.

20. I accept that the offender was truthful in what he told police.

The central issue at trial

21. In the judgment on verdict, the Court accepted the evidence in Ms Krey’s statement to police that during the argument in the house, the offender had threatened to stab her: at [102]. Following a review of the evidence of witnesses to the stabbing, the Court accepted the evidence of three witnesses and the offender’s account to police that the deceased had said something to the offender immediately before he stabbed him: at [110].

22. In the judgment on verdict, the Court was satisfied beyond reasonable doubt that the actions of the offender, namely, stabbing the deceased, caused the death of the deceased and that, having regard to the length of the blade of the knife and the depth, number and location of the knife wounds, the offender stabbed the deceased with the intention of killing him.

23. The central issue in dispute at the trial concerned the offender’s state of mind at the time of the stabbing. The defence contended that, if the court was satisfied beyond reasonable doubt that the elements of the offence of murder were made out, then he qualified for the partial defence known at the time of the trial as “substantial impairment by abnormality of mind”, which will be referred to in this judgment as “substantial impairment”. It was made available by s 23A of the Act and had three elements for the defence to establish on the evidence, on the balance of probabilities. They were:

1. that at the time of the stabbing, the accused had an “abnormality of mind arising from an underlying condition”, as defined at s 23A(8) of the Act;

2. that at the time of the stabbing, the abnormality of mind substantially impaired the accused’s capacity to understand events, or to judge whether his actions were right or wrong or to control himself; and

3. that the impairment was so substantial as to warrant the accused’s liability for murder being reduced to manslaughter.

   24. In support of its contention, the defence tendered 26 reports and other documents that were generated over the offender’s childhood and adolescence (“the documentary material”) and called evidence from a forensic psychiatrist, Dr Olav Nielssen, and a forensic neuropsychologist, Dr Molly Schafer. The Crown arranged for the offender to be assessed by a forensic psychiatrist, Dr Stephen Allnutt, and a forensic neuropsychologist, Dr Susan Pulman.

   25. In the judgment on verdict, in relation to the first element of substantial impairment, the Court found, on the balance of probabilities, that at the time of the offence, the offender had an intermittent explosive disorder as diagnosed by Dr Allnutt; a Foetal Alcohol Spectrum Disorder (FASD) as diagnosed by Dr Schafer; and a complex post-traumatic stress disorder (“complex PTSD”) as diagnosed by Dr Pulman. In relation to the second element, the Court found those three conditions substantially impaired the offender’s capacity to control himself at the time of the stabbing. In relation to the third element, the Court took into account the degree to which the three conditions contributed to the offender’s urge to kill the deceased, and his ability to resist that urge.

   26. The offender’s mental condition is relevant on sentence, in a number of ways, some being mitigatory and others exacerbatory, as was explained by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. An offender’s mental condition may reduce their moral culpability, as it has done here, by the offence being reduced in seriousness by the verdict of manslaughter, rather than murder. It may make the offender an inappropriate vehicle for general deterrence and lessen or eliminate the need for a sentence to reflect specific deterrence. There may also be less need for the sentence to reflect retribution and denunciation: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [54]. Conversely, it may mean that the offender presents more of a danger to the community so that specific deterrence may result in an increased sentence.

   27. That being so, it is appropriate to review the material as to the offender’s background, his mental health history and the opinions of forensic experts that were accepted in the judgment on verdict.

The offender’s background

28. The offender’s background, according to the documentary material, is as follows.

29. The offender was born in Sydney, the second of four children, and was initially raised by his mother. His parents had significant domestic violence and drug and alcohol issues and separated when he was aged about four. At that time, in 2002, his father received a lengthy prison sentence for a crime of extreme personal violence, only being released in 2017. When the offender was aged five, the family relocated to Armidale. According to some of the documentation, this was pursuant to the family being put on the witness protection program.

30. By the age of eight, the offender was in foster care, but after about 18 months, he was moved back into his mother’s care in Sydney. That arrangement did not last, and by age 10 he was in a foster placement back in Armidale. On 2 April 2009, at which time the offender was still aged 10, by an order of the Children’s Court sitting at Tamworth, he and his (then) two siblings were made wards of the state. In November 2010, when he was aged 12, he was placed with his maternal grandmother. Two months later, he was removed from her care, when she was taken off a train while suffering methadone withdrawals. On 18 August 2011, orders were made restoring the care of the offender, then aged 13, to his mother in a phased process of supervision over the ensuing two years. However, it appears that this did not eventuate. On 5 September 2013, when the offender was aged 15, an order was again made, making him a ward of the state. As noted by clinical neuropsychologist Dr Schafer, by that date the offender had:

“… lived in 16 different placements, including authorised carer’s, residential homes, kinship placements (grandmothers) and failed restorations to his mother.”

31. The offender left school during the course of Year 10 and attended TAFE for a few months. He has never been employed. In July 2016, when aged 18, he moved from Armidale to Sydney, initially living with Mr Bobak. After several months, he moved in with his mother, at Whalan.

Psychological and psychiatric assessments of the offender during his childhood and adolescence

32. When the offender was aged four years and two months, he was assessed by a general practitioner, Dr Peter Louda, as having ADHD. Dr Louda noted:

“… the parents split up, both on street drugs, father ending up in Corrective Services Institution while mother is on Rehabilitation at present therefore [Billy] is in legal custody of his biological grandmother for one year.”

33. The offender was examined by a consultant paediatrician, Dr Parle, when he was still aged four. She stated in a report that the offender had “early onset of severe disruptive and aggressive behaviours” and that the parents had separated seven months before, “due to long-standing history of domestic violence”. Dr Parle continued:

“The issues raised concerning [Billy’s] behaviour related to his danger to himself and others. He is extremely hyperactive and has been since in utero times. He will climb the roof. Even in sleep he demonstrates restless leg syndrome. He is physically aggressive, punching his mother and siblings and destroying toys. He is impulsive with no fear of danger. He fire lights and he has severe and aggressive tantrums when frustrated …

Developmentally he has poor language skills, saying his first meaningful words at about 2 years of age and forming two (2) word combinations at 2 ½ years of age. He is felt to be immature for his age. He walked at 16 months of age …

He was born after a pregnancy complicated by anti-partum haemorrhage at 15 weeks gestation and a possible foetal loss of a twin at that time. He was born at 42 weeks gestation by spontaneous vertex delivery … As noted previously, his mother noted that there were marked increased foetal movements, compared with her other pregnancies.

…

On examination … [h]e had a mild articulation disturbance and mild expressive and receptive language delay clinically.”

34. Dr Parle commenced the offender on a course of medication and in a later report said:

“There has been a definite response with a marked reduction in hyperactivity and impulsivity. He has been less aggressive and there has been less fire lighting.”

35. The family were to move to Armidale and so Dr Parle referred the offender to Dr Wiles, a consultant paediatrician based there. In a report when the offender was aged five years and four weeks, she reported him as having ADHD and responding to Ritalin, and “Global delay”, including language delay and not being ready for school, “hence staying at Pre-school longer”. She reported that the offender had a paucity of imagination but “no other marked features of Asperger/Autism”. She identified as an issue: “Violence, lights fires”. Dr Wiles observed:

“[Billy’s] problems are long-standing … The biggest problem for the family is the violence. The family have to hide the knives at home …

Development:

.. fine motor – hands continually moving, imagination: eg killing people and stabbing …”

36. Dr Wiles concluded:

“[Billy] is 5 yo. He has huge issues with his behaviour. There is violence, lighting fires, lack of empathy, lack of social skills. He appears to have a Global Development Delay and has difficulties with his ADL (Activities of Daily Living) and is yet to have this fully assessed. Reportedly his self-esteem is okay. He has marked ADHD.”

37. In a follow-up report a week later, Dr Wiles noted that “Billy came along because his Mum is so concerned about the lighting of fires”. Following a suggestion of Dr Wiles, the offender was assessed by a psychologist, Sally Collier, who was also a District School Counsellor in Armidale. She wrote to Dr Wiles while the offender was still aged 5, following on an earlier conversation with her, saying:

“As we are aware Billy and his family are placed in Armidale on the witness protection program. It is reported by Billy’s mother and grandmother that the children have been witness to domestic violence and other traumatising events that probably account for some of the behaviours that are causing concern to those providing pre-school and schooling … In Billy’s case these behaviours are both externalising and internalising. Billy has been firelighting at night, being aggressive and also presents as a child with little attachment to others or understanding of their feelings. At preschool he can be remote, unemotional and detached.

…

… As you will be aware his mother is in drug and alcohol rehabilitation for some weeks and this will create more stability in the home setting …

I have been consulting with Malini Singh, Psychologist, DADHC, who is also involved with the family. Together we have completed assessments of Billy and reviewed the supports we can give this family. My clinical assessment of Billy on the Weschler Intelligence Scale for Preschool and Primary [School] Children reveals a low average ability level overall but with a disparity of twenty points between the scales … Malini completed a Vineland Adaptive Behaviour Scale Assessment with the grandmother and interestingly Billy scored at the upper level of mild intellectual delay on this scale. This also supports the idea that his interactions and adaptive behaviours are impaired probably by a traumatised early life … Malini confirms that departmental contact verifies the very difficult and traumatising history of this family. Father is in jail for attempted murder. I do not believe we can classify Billy as having an intellectual delay and therefore he will not be eligible for ongoing DADHC services.”

38. The reference to DADHC is to the (then) NSW Department of Ageing, Disability and Home Care, which provided specialist services to persons who have an intellectual disability.

39. Dr Wiles saw the offender again when he was aged eight. She identified the following “Issues”:

“1.   Maternal alcohol

2.   Post Traumatic Stress Disorder

3.   Past History of Physical and Mental Violence

4.   ADHD

5.   Oppositional Defiant Disorder ?parenting style.”

40. Dr Wiles noted that Ms Krey claimed she had run out of the medication prescribed for the offender’s ADHD (being dexamphetamine) but, in my view, the terms of the report strongly imply that Dr Wiles suspected it was being taken by Ms Krey or another adult. Dr Wiles also noted that the offender was significantly underweight and that there appeared to be food shortages in the home.

41. Excerpts from a document from the “Child Court Clinic”, bearing a facsimile date of 18 December 2006, refer to the offender as:

“… continuously experiencing visual and auditory perceptions of a delusional quality, in which he is typically surrounded by haunting jeering men with stitches in their lolling heads, with nondescriptive faces and protruding tongues, who speak gibberish, threaten him and grunt. Behind this vista of frightening men he sees metal grates in an unfamiliar street that constantly drip with blood.”

42. Further on, the report stated:

“Billy appears profoundly traumatised by the cumulative effect of his prolonged and chronic exposure to extreme domestic violence, which culminated in his exposure to an incident of serious criminal violence involving his father.”

43. The report recommended that the offender be referred to a neuropsychiatrist for specialist clinical management of his pre-psychotic symptoms. It noted:

“Billy’s current foster placement does not meet his special emotional needs and would appear to be exacerbating his psychological difficulties.”

44. An excerpt from an undated report of the Hunter New England Area Health Service, which appears to have been generated at about this time, refers to the offender and his family as follows:

“The children’s father is serving an 18 year gaol term … The children’s mother has severe drug and alcohol problems and has charges pending for robbery …

There is a past history of extensive exposure by the children to domestic violence and other violence. There is also a history of extensive exposure to drug and alcohol use. There is a history of antisocial behaviour in most males on the paternal side of the family and drug and alcohol use, and antisocial behaviour on the maternal side of the family.

[Ms Krey’s] long use of drugs and alcohol has included cannabis and amphetamines. Billy was exposed to alcohol and other drugs in the intro-utero environment …”

45. Dr Wiles saw the offender when he was aged nine, with his “carer”. The identified issues were, other than those already identified by her when he was aged eight: “Epilepsy … Maternal drug abuse and neglect, currently in the care of DOCS … Anxiety high levels relating to the above”. Dr Wiles noted that the offender was seeing a worker with the Physical Abuse and Neglect of Children section (“PANOC”) of the NSW Department of Family and Children’s Services (as it then was).

46. Dr Wiles prepared a report dated 13 November 2007, when the offender was still aged nine, to be forwarded to the offender’s new paediatrician in Sydney. She noted that the offender had been with the same carer for the previous 18 months and was to be returned to his mother’s care “by the courts”. She identified the issues as follows:

“1.   Abuse and neglect – with the experiencing of depersonalisation feelings and visual and auditory perceptions of delusional quality (see Children’s Court report).

2.   Seizures – recently diagnosed. Controlled on Epilem May 2007 …

3.   ADHD – familial. …

4.   Aggression – much improved since being with his carer for the past 16 months and program at school to cope with his needs and PANOC. …

5.   Weight – has had decreasing weight from the 97th centile when I met him aged 5 years, at which time his height was above the 97th centile. From the age of 7 to 8 years he lost weight just prior to going into care. With increased calories over the past two months has had a weight gain of 1.5kg which is good (as opposed to previously weight static for the prior three months).

6.   Post-Traumatic Stress Disorder.

7.   High anxiety levels – relating to all of the above.

8.   Learning disability.

9.   June 2005 report that mum was about to go to jail.

10.   Foetal alcohol effect – mum has ongoing drug dependency issues.”

47. In his report dated 7 January 2008, Dr Louda noted that the offender had been under the care of a paediatrician in Armidale. He stated:

“Overall, he is much more settled and relaxed being away from his Foster family and relating well to his grandmother ...”

48. The next report by Dr Wiles is dated 11 June 2008, on which date she had seen the offender with his previous carer. The offender was aged 10. It appears that he was returned to their care in Armidale, from Sydney, where he had resided with his mother. Since his return, there had been two major “behaviour explosions” at the end of the school day. Dr Wiles reported: “He is angry and is reported to be saying adults are mean, saying adults are hitting him”.

49. The next report by Dr Wiles is dated 18 February 2009, when she saw the offender with a new foster mother. The identified issues were:

“1.   Billy’s behaviour was increasingly severe over the months prior to December, with behaviour described as ‘feral’

2.   Abuse & Neglect.

3.   Seizures …

4.   ADHD …

5.   Aggression – improved over the past 18 months …

…

7.   Post Traumatic Stress Disorder.

8.   High anxiety levels …

9.   Learning disability …

10.   Fetal [sic] alcohol effect.”

50. A report dated 15 December 2010, by Donna McGushin, who was a child protection counsellor with PANOC, referred to a report dated 1 February 2010 by the Child Protection Counselling Service (“CPCS”):

“At the time of the last CPCS update report (1 February 2010) therapeutic services were withdrawn for Billy as it was the view of the CPCS that Billy’s deterioration in behaviour was attributable to the emotional and mental turmoil he was experiencing as a result of increased family contact, particularly the unsupervised contact with his mother [Ms Krey]. It was also the view of the CPCS that Billy’s placement was in danger of breaking down due to the negative impact of [Ms Krey’s] contact with Billy and the negative and invasive actions [she] was displaying towards his foster carer …

The decision to withdraw therapeutic service was not taken lightly, given that Billy is in need of therapeutic intervention. However, CPCS has been involved with Billy since 2005 and has witnessed Billy at times make progress in his foster placements and at school only for these gains to be negated with unsupervised contact with his mother. It continues to be the view of the CPCS that Billy will not settle and make significant progress in permanent care while he continues to have monthly unsupervised contact with his mother. …”

51. In a report dated 17 August 2010, Dr Nick Kowalenko, child psychiatrist, stated he had assessed the offender in the company of his foster parents. He stated that he had previously seen the offender in 2005 and again in 2007. The first time was with his grandmother. In relation to the treatment of the offender with Epilim, Dr Kowalenko said:

“He is being treated with Epilim since 2007 following a clinical diagnosis of petit mal seizures although this was not confirmed on EEG. His EEG in 2007 did reveal marked immaturity but no focal features … A trial of cessation of Epilim was conducted three months ago and as his dose was reduced he was noted to become very angry and aggressive. This resolved when his dose was increased again.

Over the last year he has had intermittent contact with his family of origin, particularly his mother. When he was having over night stays with his mother his behaviour on returning to his placement was noticed to have markedly deteriorated. This was especially the case at school, where the deterioration was more marked and prolonged after visits to [his] mother.

Since care and protection findings have limited his visits to his mother to half a day a month his overall pattern of disturbed behaviour has improved.

[His foster parents] presented with Billy today because of their concerns that a few weeks ago he had lost control in the context of a temper tantrum and they were concerned that he was not aware of his surroundings ...”

52. The PANOC report by Ms McGushin, dated 15 December 2010, was addressed to a caseworker with the Out of Home Care section of the NSW Department of Family and Community Services. It noted:

“… Billy’s placement did break down in October 2010.

As advised at our update meeting on 10 November 2010 the CPCS has now closed the case.

As advised by you at the case review meeting I attended on 13 December 2010 Billy has now been placed with his maternal grandmother … on the Central Coast.”

53. The next report by Dr Wiles is dated 29 June 2011, when the offender was aged 13. He had been living in a community house (“Life without Barriers”) with multiple carers for the previous three months. Dr Wiles said: “He tells me he has not been suspended again from high school”. Later in the report, Dr Wiles said:

“Billy has a long and troubled history with his emotional and physical abuse, maternal drug and alcohol abuse and multiple carers.”

54. The next report by Dr Wiles is dated 12 October 2011, on which date she saw the offender with a new “house mother”. She said:

“Billy has a long troubled history with emotional and physical abuse and anxiety, and he seems very lonely to me, a 13 year old living in a community house with changing carers, suspended from school repeatedly, no friends named to me today and unable to tell me what defines a friend … He has recently been suspended at the end of Term 3 for fighting with one of his ‘friends’. [His house mother] wonders if there has been bullying at school …

Regarding the fighting at school, Billy was forgetful of the exact events. I wonder if this could be from being in an emotionally overwhelming situation.”

55. Dr Wiles saw the offender on 14 November 2012, when he was aged 14, with one of his “Life Without Barriers” carers. In a report of that date, she noted the current issues included:

“1.   Post Traumatic Stress Disorder/Reactive Attachment Disorder following early abuse and neglect …

2.   Behavioural issues with black and white thinking, egocentric and social views much more like a much younger child.”

56. In a report dated 29 October 2013, Dr Wiles noted that the “Life Without Barriers” community house had dissolved and the offender was now living with his former carer. She said: “Billy was leaving home each day for school but not turning up to classes. 20 day suspension resulted”.

57. In her last report tendered in evidence, dated 14 May 2014, Dr Wiles noted that the offender had a:

“Troubled childhood with removal from family care, multiple carer placement failure, group homes that closed, planning to move back with mum.”

The offender’s presentation to police

58. The NSW Police Custody Management Record for the occasion of the offender’s arrest has an entry that the “Detained person stated he cannot read or write”. As noted earlier, a support person was deemed appropriate and arranged, being Rebecca Palu. At 9:05pm, while waiting to be interviewed, the offender asked Sergeant Anderton: “The person I stabbed, can you tell me anything about him?” At the commencement of the formal interview, police indicated that they were aware, from papers they located at Mr Bobak’s residence, that the offender suffered from ADHD and PTSD.

Evidence of Mr Bobak and Ms Krey as to the offender’s mental condition

59. Mr Bobak said that the offender had lived with him for about six months before he moved in with Ms Krey. For a few months of that period, AJ lived there with the offender. The couple appeared to get along well. At that time, Mr Bobak’s household included his wife and mother, who have both since died. Following the offender being placed in the Minister’s care, he had in the order of 16 carers. On the night of the incident, Mr Bobak told police that: “He’s only 19 but he’s only like 13, 14 in the brain”, which he explained in evidence was a reference to the offender’s apparent level of maturity. Mr Bobak said that when the offender went to live with Ms Krey, she stopped giving him medications that he was prescribed. There was no evidence as to what the medications were for.

59. In her statement, Ms Krey said:

“He is not much of a drinker (alcohol). Billy can’t read and write, however, he does know right from wrong. Billy has never held a job. Billy attended Armidale Duval High School in Armidale finishing in Year 10.

… Billy suffers anxiety and depression, because of the location where we live. We have lived for here for the past two years.

… [He] wakes up angry … most of the time over nothing. He has also had verbal arguments with [AJ], just teenage squabbles. As far as I know he has never apart from today laid any hands on her.

… Detective Caulfield asked me if he has assaulted me at any time. I told him we have had numerous arguments and never to today's extent.”

A self-harm incident

61. AJ gave evidence of an incident that had occurred shortly after they started living at Number 93. Ms Krey asked AJ to walk to the shops to buy something. AJ agreed. The offender wanted to accompany her, but she preferred to go for a walk by herself. The shop was about 10 minutes away. The offender became very upset and took a butter knife and tried to cut his throat. A male friend of the offender, aged 14, was present, and he and AJ managed to stop the offender, but not before he had left “a couple breaks” of skin on his throat. Mr Bobak gave evidence that a few months before the stabbing, he observed a mark on the offender’s neck. The offender declined to explain it, but AJ told him what had happened.

Ms Krey’s use of drugs and alcohol

62. In a report dated 16 February 2009, Dr Louda said:

“… I had the opportunity to see [Ms Krey] … on a number of occasions between 1994 and 2007, her being addicted to a number of drugs which we tried to help her to seek specialised help to be detoxicated, but unfortunately she did not return for her blood test and urine test results which were organised for her in March, 2007, her being positive to 4 substances.”

63. Mr Bobak said that the offender’s mother, who was his daughter-in-law, was a chronic drug user over most of the 26 years he had known her. A death certificate in respect of Ms Krey was tendered in evidence. It indicated that the date of death was between 15 and 17 July 2018. The cause of death was expressed to be: “Consistent with fentanyl toxicity”. I note that fentanyl is an opioid that is often an abused prescription drug.

The opinions of the forensic experts

64. Dr Schafer explained the basis of her diagnosis of FASD in a report dated 20 September 2018:

“Although there are no records indicating the specific amount of maternal alcohol use, Dr Wiles made several references to maternal AOD dependence and foetal alcohol effects ... A report from the Hunter New England Area Health Service indicated exposure to alcohol and other drugs while [the offender] was in utero … [The offender’s paternal grandmother] reported a history of maternal alcohol and other drug dependence while [his] mother was pregnant ... A report by a DOCS caseworker noted the fact that his mother was in alcohol and drug rehabilitation … Taking the above evidence in totality, it is my opinion that [the offender] is suffering from Foetal Alcohol Spectrum Disorder (FASD).

65. In her report dated 7 July 2020, Dr Schafer said:

… As documented in childhood reports, [the offender’s] behavioural traits throughout his childhood were characteristic of those seen in FASD. They are also common in children who have experienced severe childhood abuse and trauma. In particular, [the offender’s] reduced empathy for others, impulsivity, explosive behaviour, reduced ability to understand the consequences of his actions and his language impairment, in my opinion constitute an abnormality of mind causing an inability to control himself during the commission of the alleged offence.”

66. Dr Pulman expressed reservations as to Dr Schafer’s diagnosis of FASD, preferring a diagnosis of complex PTSD:

“Although it is likely that [the offender’s] deficits are to some extent associated with prenatal exposure to alcohol, the presence of extensive comorbidity including the complexity of environmental factors associated with his history of child maltreatment complicates such a diagnosis. Some of the difficulties encountered when examining prenatal alcohol exposure [include] failure to obtain valid and reliable prospective assessments of drinking patterns during pregnancy; a systematic lack of information on low-to-moderate-level alcohol exposure and pattern (chronic vs. binge) and timing of binges as well as failure to adequately control for [compounding] factors such as parental intellectual abilities, socioeconomic variables and other environmental issues.

…

A review of documentation indicates a number of references to foetal alcohol spectrum disorder as a potentially contributing factor to [the offender’s] cognitive and behavioural difficulties. There is also extensive evidence of child abuse, neglect and exposure to violence, all of which are known to contribute to the cognitive deficits evident on testing and which overlap with the symptoms of FASD. The most consistent diagnosis referred to throughout the records is complex post traumatic stress disorder associated with his extremely traumatic environment. It is noted in the report prepared by the Children’s Court Authorised Clinician, that the impact of family trauma is considered the most likely aetiology to explain [the offender’s] challenging behaviour and psychological and cognitive symptoms. It is of particular relevance to note that Authorised Clinicians have access to the parents’ medical and psychiatric history when preparing reports for the Children’s Court and in the process of reviewing all documentation available has opined the most likely cause of [the offender’s] behaviour in [childhood] and adolescence was due to his history of trauma. Based on my review of the documentation, I concur with this opinion.”

67. In evidence, Dr Pulman explained how the offender’s complex PTSD could have prompted his gross overreaction to the deceased:

“It can prompt an overreaction to an event or a comment, or even a facial expression, or it’s for whatever reason a perceived threat which can lead to an overreaction to – most of us say well, why did you overreact? That's just completely disproportionate to what’s happened. But you do see that completely out of proportion reaction to things from severely traumatised children and then they can just go into a space for a couple of moments.”

68. I note Dr Pulman’s evidence that FASD may be conducive to treatment, to some extent:

“Q. In relation to brain damage caused by foetal alcohol spectrum disorder, is that reversible?

A. Well there are arguments about whether you can, certainly if they get diagnosed with the physical features of foetal alcohol disorder, no. There will be a number of those, I think it’s – you can see it clinically in their facial – the way the face is; the position of the ears, et cetera. And then there would be others that would argue with appropriate treatment you can overcome the deficits. There are many different schools of thought with developmental trauma and with foetal alcohol.”

69. When taken to Dr Pulman’s diagnosis of complex PTSD, Dr Schafer said:

“I think both of them are equally important and playing into each other and compound the effects together. So I don't think it’s that relevant which is the primary diagnosis. I would say the foetal alcohol spectrum disorder would be a preceding diagnosis because the effects of it take place in utero; whereas childhood trauma would have been after he was born during his early years.”

Later, Dr Schafer said:

“But if you take the evidence in totality, I think it’s very convincing for a diagnosis of FASD as well as childhood trauma and PTSD.”

70. In his report dated 17 September 2018, Dr Allnutt was of the opinion that the offender’s “lifetime of behavioural problems” collectively constituted an intermittent explosive disorder, which is an abnormality of mind arising from an underlying condition:

“He manifests a long history of difficulties in controlling his behaviour with intermittent aggression, present from a young age. This raises a diagnosis of intermittent explosive disorder which is characterised by recurrent impulsive, aggressive behaviour (verbally or physically) which is difficult to predict, and out of proportion with the preceding stressor or trigger … (based on the documentation this seems to have been the case for most of his life). [P]eople with history of trauma are at increased risk of having this condition, it generally onsets in childhood, it is often associated with depressive conditions substance use and post-traumatic stress, as well as personality disorders.

…

My current view is that [the offender] manifests multiple psychiatric problems including: a history of conduct disorder in childhood, ongoing specific language disorder, attention deficit hyperactivity disorder, persistent depressive disorder/dysthymia, and intermittent explosive disorder. It should be noted that many of the symptoms in these conditions can overlap. He manifests behavioural problems through[out] his lifetime as a consequence of exposure to alcohol in utero, traumatic/abusive/neglectful upbringing combined with inborn temperamental vulnerabilities, aggravated by use of substances.

The events leading up to the offence

71. In the judgment on verdict, the Court noted a combination of factors that culminated in the offender taking the deceased’s life. By ceasing to reside with his paternal grandfather and moving in with his mother at Number 93, the offender no longer had the benefit of his grandfather’s supervision and, critically, he stopped taking his medication. It is apparent from the documentary material concerning the offender’s childhood and adolescence that his medication had a calming influence on him, and when he did not take it, he became aggressive. It is also apparent that, from the age of five, whenever the offender was in the care of his mother, his behaviour deteriorated.

72. Stabbing as a violent act had a direct connection to the violence the offender had endured as a toddler, as is apparent from the reference to him engaging in stabbing motions when aged four, and of knives having to be hidden from him at that age. The incident some weeks earlier, when the offender took a knife to his neck because he was unable to accompany AJ to the shops, demonstrated a marked deterioration in his capacity to control himself and was an instance of resorting to a knife (on that occasion, a butter knife) to act out his frustration.

73. Ms Krey remarked in her statement to police that, although she and the offender frequently argued, the argument between them that preceded the stabbing was unprecedented in its aggressiveness and violence and included threats by the offender to stab his mother, which was moments before he attacked the deceased.

The objective seriousness of the offence

74. I find that the offender did not plan the offence against the deceased: s 21A(3)(a) of the CSP Act. The deceased engaged the offender immediately before the attack and said something to him that was interpreted as mildly insulting. However, the offender’s response was so disproportionate that I find that the attack was unprovoked.

75. The attack was without motive, as acknowledged by the offender when asked by police why he had stabbed the deceased. The explanation for the occurrence of the offence lies partly in the offender’s substantial impairment of his capacity to control himself, being the reason that he was convicted of manslaughter rather than murder. Motive and a mental condition that is causally connected to the offence are relevant considerations as to the objective seriousness of the offence: Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 at [112]. See also Biddle v R [2017] NSWCCA 128 per Hoeben CJ at CL at [68].

76. The use of a weapon was an aggravating factor: s 21A(2)(c) of the CSP Act. Having regard to the number, depth and location of knife wounds suffered by the deceased, I find that it was a sustained attack and the offender’s intent was to kill the deceased, who was unarmed and did not offer any resistance. The offender knew the deceased was affected by alcohol, as is apparent from what he said during his interview by police.

77. In all those circumstances, I find that the objective seriousness of the offence is high.

The victim impact statement

78. A victim impact statement, written by the eldest daughter of the deceased, Salati Sini, on behalf of herself, her two sisters and three brothers and their extended family, was read out. In her statement, Ms Sini described something of the profound impact that their father’s death had on her and her siblings Peniamina, Taunese, Ieremia, Mele and Lutu. I offer the Court’s condolences to Salati, each of her siblings and her family, for their loss, suffered in such terrible circumstances.

79. I acknowledge Ms Sini’s statement pursuant to s 3A(g) of the CSP Act, namely, as recognition of the harm done to the community.

Subjective considerations

The offender’s criminal record

80. The offender has one entry on his criminal record, a shoplifting matter involving chocolate bars when he was aged 15, which was dismissed pursuant to s 33 of the Mental Health (Forensic Provisions) Act 1990 (NSW): s 21A(3)(e) of the CSP Act.

Prior good character

81. I find that the offender was of prior good character at the time of the offence: s 21A(3)(f) of the CSP Act.

The offender’s preparedness to plead to manslaughter: s 21A(3)(n) of the CSP Act

82. The offender had offered to plead guilty to manslaughter through his legal representatives on 15 April 2020, which was approximately five and a half months before the commencement of the trial and 14 months after he had been committed for trial. Ordinarily, that would not be regarded as an early offer to plead guilty to a lesser offence, but the history is complicated by the fact that the offender had been assessed by Dr Nielssen, in a report dated 17 June 2018, as being unfit to be tried. Following a fitness hearing, he was found unfit to be tried on 21 June 2019 and, following a second fitness hearing, was found fit to be tried on 5 March 2020.

83. In my opinion, it was not open to the offender’s legal advisors to obtain final instructions for a plea of guilty to a lesser charge whilst he remained unfit to be tried. The offer to plead was conveyed to the Crown six weeks after the offender was found fit to be tried. In those circumstances, I find that the offer to plead guilty to manslaughter was made at the first opportunity when it was reasonable for him to do so: Haines v R [2016] NSWCCA 90, at [30]. I understand that the Crown accepts that proposition and that a discount of 25 per cent is appropriate.

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

84. The offender expressed regret when interviewed by police on the night of the offence and to Dr Katie Seidler, forensic psychologist, who noted that the offender: “expressed seemingly genuine regret and remorse for his offending behaviour”. The terms of the offender’s expressions of regret were simplistic, in keeping with his language usage and low average level intelligence, but I accept them to be genuine.

85. An offender’s offer to plead guilty to manslaughter may be evidence of remorse: Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 at [22]. The offender’s offer to plead guilty to manslaughter is consistent with his open admission to police that he had stabbed the deceased and caused his death, even though he did not recollect the act. Although the Crown case that the offender killed the deceased was very strong, I find that the offer to plead was also an expression of remorse.

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

86. It was submitted on behalf of the offender that his moral culpability was reduced because of the social environment of extreme deprivation that he endured in his formative years. Reliance was placed on Bugmy, in which the plurality said:

“[40]   … The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.

...

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

87. The material relied upon by the offender to advance the Bugmy principle is the same material that is relevant to the genesis of the diagnosed mental conditions. However, there is a discrete area relevant only to the Bugmy principle, which is the extent to which his childhood and adolescent social environment, in particular, the violence in the family environment, reduced his moral resistance to resorting to violence. In any event, an overlap of the principles does not, in my view, reduce their application.

88. The circumstances of this offence excite both aspects identified by the plurality in Bugmy; while the offender’s upbringing mitigates his moral culpability, the circumstances and seriousness of the offence, and the offender’s unaddressed mental condition, raise a real concern about the need for protection of the community, to be addressed within the ambit of a sentence that is proportionate to the offence: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14.

Prospects of rehabilitation

89. A report by Dr Seidler was tendered at the sentence hearing on behalf of the offender. Amongst other matters, Dr Seidler was asked for an opinion as to the offender’s treatment needs and prospects of rehabilitation. Dr Seidler examined him in prison on 10 February 2021 and noted as follows:

“[The offender] claimed that he has suffered from paranoid ideation over the years and he also endorsed what appear to be episodes of sensory hallucinations, such as being able to taste and smell blood. There is also a reported history of some delusional thought content, in addition to ideas of reference and magical thinking. [The offender] denied a history of depersonalisation or derealisation. [The offender] claimed that he underwent medical investigations of his brain that were unremarkable. Comment: His reported symptom experience suggests a possible emerging psychotic condition.”

90. Dr Seidler observed later in the report:

“As a result of profound history of trauma, [the offender] now presents with a disorder of personality, most consistent with that of a Borderline nature.”

91. Dr Seidler applied two assessment tools in order to gauge the offender’s propensity for future violent offending. One was the HCR-20, which is a structured clinical risk assessment guide to assist in considering issues pertinent to evaluating risk for future violence. According to the HCR-20, the offender was considered to pose a “generally moderate risk” of future violent offending, although it would likely increase in certain situations. Dr Seidler noted that the offender is:

“… a high needs individual, who will need long term and intensive support, supervision and intervention, which will be difficult to coordinate and maintain in the community.”

92. The other assessment tool used by Dr Seidler was the Violence Risk Scale (“the VRS”), which assesses the risk for violence in forensic populations by having regard to both static and dynamic risk factors that are considered to be associated with violent recidivism. The result was that, according to the VRS, the offender’s level of risk of violent reoffending falls in the “medium” range, the main contributors to that risk being the long term and chronic factors that have contributed to his psychosocial vulnerability and behavioural dysregulation. Dr Seidler explained that 29.6 per cent of offenders in the data utilised for the VRS with a similar score to that of the offender were reconvicted of a further violent offence within five years of release and 50.4 per cent were reconvicted for a non-violent offence within the same period.

92. The offender has little in the way of family support. Dr Seidler thought that his relationship with his father is superficial and contact with his sisters is infrequent, and with his younger brother, rare. His main family support is his paternal grandmother.

93. Dr Seidler made certain recommendations as to the offender’s future care:

“85   … [The offender] is considered a highly vulnerable person, who is in need of long term and intensive support, supervision and intervention in order to address his vulnerabilities and temper his criminogenic needs so that he has a chance at a meaningful community transition. It will be in the community that [his] needs are most significant and where he will need the strongest support. It is also noted that given [his] neurocognitive limitations and mental health concerns, he will find it difficult to profit from offence-focussed treatment in prison (such as with the Violent Offenders Treatment Programme).

86.   Firstly, it is recommended that in addition to the support and supervision of Community Corrections, it will be important for [the offender] to be referred to a structured program of case management support in the community. It may be that the best source of this is through the NDIS. This Service would also assist [him] by providing him with appropriate mentoring and social support and encouraging him to forge appropriate links in the community and to develop prosocial friendships.

87.   [The offender] will need support in relation to furthering his education and/or becoming employment ready, if possible. The combined support of Community Corrections and the aforementioned case management service would assist to this end.

88.   [The offender] presents with complex mental health needs that require both intervention and management. This is even more important considering the possibility of a potentially emerging psychotic condition. Whilst in prison, it would be important for Justice Health psychiatrists to work with [him] to stabilise his medication regime. Justice Health can then facilitate an appropriate referral for [him] to a psychiatrist in the community.

89.   In addition to psychiatric care, [the offender] will need long term psychological therapy, which amongst other targets, should address the following:

∙   Develop self-awareness,

∙   Improve emotion regulation and coping skills,

∙   Resolve past traumas,

∙   Increase problem solving and decision making skills,

∙   Address anger management concerns,

∙   Improve skills for independent living,

∙   Develop skills to challenge maladaptive patterns of thinking.

[The offender] will not be able to fund this treatment independently and his needs will be long term. Depending on his age when released, referral to a youth specific service like HeadSpace would be appropriate. It would also be sensible to help [him] apply for funding through Victims Services. Given the complexity of his presentation, it is recommended that a clinical psychologist would best meet his needs, and ideally someone with experience working with people who present with neurocognitive limitations.”

95. I conclude that the offender’s prospects of rehabilitation are dependent upon what services and treatment he receives in prison and in the community, following his release. If these are forthcoming, his prospects are positive, in view of his demonstrated capacity to lead a law-abiding life throughout a traumatic upbringing, until the commission of this offence. If they are not, his prospects are guarded.

Youth

96. At the time of the offence, the offender was aged 19 years and 2 months. I take into account that in R v AEM [2002] NSWCCA 58 the Court (Beazley JA, Wood CJ at CL and Sully J) said:

“97   It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation: see R v DAR (unreported, New South Wales Court of Criminal Appeal, 2 October 1997); R v Mazzilli [2001] NSWCA 117. However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does, can it stand in the way of the need to protect society. Lee AJ commented on this in Nichols at 395:

‘True it is … that the courts consistently point out the need to give young offenders a chance and to refrain from sending them to gaol or dealing heavily with them if that course can be avoided … However, there is a point at which the seriousness of the crime committed by a man of 19, even though a young man, is of such a nature, is so great, that that principle must, in the public interest, give way.’ (emphasis added)”

The appropriate sentence

97. I am satisfied that no penalty other than imprisonment is appropriate: s 5 of the CSP Act.

98. The offender has significant mental conditions that directly contributed to the offence, being FASD; complex PTSD; and an intermittent explosive disorder. Those diagnoses and the impact on the offender of his deprived background, activate considerations of reduced moral culpability and lessen reflection of general deterrence and retribution in his sentence, pursuant to the principles recognised in Director of Public Prosecutions (Cth) v De La Rosa and Bugmy.

99. The degree to which those two issues directly contributed to the attack is to the extent that, without them, the attack would not have occurred. The attack was explosive, random and inherently lethal in nature, and thus far the diagnosed mental conditions remain unaddressed by treatment. I note Dr Seidler’s recent diagnosis of borderline personality disorder, as well. For the reasons explained in Director of Public Prosecutions (Cth) v De La Rosa and Bugmy, I consider that protection of the community remains a factor to be reflected in the sentence by way of specific deterrence. I will also reflect that concern in an adjustment to the non-parole period.

100. The starting point sentence is a sentence of imprisonment for a period of 14 years 8 months, which is reduced to 11 years by virtue of the offender’s offer to plead guilty to manslaughter at the first opportunity when it was reasonable for him to do so.

101. As I have observed, the offender has a profound need for treatment and services, without which his prospects of rehabilitation are guarded. It is therefore in the interests of the community, as well as in the offender’s interests, that he be subject to parole for an extended period. Accordingly, I find that special circumstances are made out.

A recommendation

102. I make a recommendation to the authorities that the offender be assessed by Justice Health with a view to developing a program of treatment that addresses the offender’s diagnosed mental conditions.

Backdating the sentence

103. The offender has been remanded in custody since his arrest on the date of the offence, on 15 July 2017. The sentence will be backdated to commence on that date.

Sentence

104. The offender is sentenced to a term of imprisonment comprising a non-parole period of 6 years and 6 months and a balance of the term of the sentence of 4 years and 6 months. The total sentence is 11 years, to date from 15 July 2017 and expiring on 14 July 2028. The offender will become eligible for release on parole when the non-parole period expires, on 14 January 2024.

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Decision last updated: 08 July 2021