R v Marlow

[2003] NSWSC 1130

CITATION:	R v Marlow [2003] NSWSC 1130
HEARING DATE(S):	11-20 August, 18 September 2003
JUDGMENT DATE:	5 December 2003
JURISDICTION:	Common Law Division Criminal List
JUDGMENT OF:	Studdert J
DECISION:	Sentenced to imprisonment for a term of nine years, commencing on 1 January 2002 and expiring on 31 December 2010. A non parole period of 6 years 9 months is fixed, commencing on 1 January 2002 and expiring on 30 September 2008. The first date upon which the prisoner is to be eligible for release on parole is 30 September 2008.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999, ss 21A, 28
CASES CITED:	R v Alexander (1995) 78 A Crim R 141 R v Blacklidge (unreported, NSWCCA, 12 December 1995) R v Bollen (1998) 99 A Crim R 510 R v Harris (1961) VR 236 R v Isaacs (1997) 41 NSWLR 374 R v Johnson [2003] NSWCCA 129 R v Martin (1981) 2 NSWLR 640 R v Mills (1985) 17 A Crim R 411 R v Oinonen [1999] NSWCCA 310 R v Phelan (1993) 66 A Crim R 446 R v Previtera (1997) 94 A Crim R 76 R v Sandford (1994) 72 A Crim R 160 R v Thomson (2000) 49 NSWLR 383
PARTIES :	Regina v Paul David Marlow
FILE NUMBER(S):	SC 70075/02
COUNSEL:	B. Newport QC (Crown) J. Stratton SC (Accused)
SOLICITORS:	Director of Public Prosecutions (Crown) Legal Aid Commission (Accused)

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

STUDDERT J

Friday 5 December 2003

70075/02 REGINA v PAUL DAVID MARLOW

JUDGMENT

1 HIS HONOUR: Paul David Marlow, the prisoner, stood trial charged with having murdered Christopher William Powell, who met his death on 1 January 2002. The trial of the prisoner began on 11 August 2003. When indicted, the prisoner pleaded not guilty to murder but guilty to manslaughter. That plea was not accepted by the Crown and eventually, on 20 August 2003, the jury returned a verdict of not guilty of murder but guilty of manslaughter. The prisoner was then remanded in custody for evidence and submissions on sentence until 18 September 2003. Time was then taken to reflect upon the matter and hence the prisoner is before me today for sentence.

2 The deceased died as a consequence of injuries inflicted by the prisoner in an attack by the prisoner in the deceased’s home shortly before 2.00 am on New Years Day 2002. Having inflicted what were inevitably fatal injuries using a kitchen knife, the prisoner called 000. By the time an ambulance officer and a police officer attended, death had occurred. The body of the deceased was found on the kitchen floor in a pool of blood wearing only, by way of clothing, satin boxer shorts. Constable Molloy observed a ragged cut across the deceased’s throat and numerous cut and stab wounds, and Ambulance Officer Davies determined that death had occurred prior to his examination of the body.

3 The post mortem examination was conducted by Dr Ellis on 3 January 2002. Dr Ellis found eighteen separate wounds to the body. There was a large cavitating wound occupying the front of the neck, some 12.5 cm across at the upper margin and separating the Adam’s apple from the small cartilage below. The wound at its deepest was six centimetres and there was transsection of the left internal jugular vein. In the opinion of Dr Ellis that wound to the neck alone would have proved fatal, but there were other deep and potentially life threatening wounds, eight in number. Then there were a further eight wounds which he did not so categorise.

4 There can be no question but that the prisoner, using a knife with an eighteen centimetre blade, carried out a most violent and sustained attack upon his unfortunate victim.

5 That the prisoner inflicted all the wounds described by Dr Ellis was not in issue and that the prisoner inflicted those injuries with intent to kill was established beyond reasonable doubt.

6 There was really only one issue at the trial, and that was the issue of provocation. The prisoner contended that:

(1) the deceased had attacked him sexually on the prisoner’s sixteenth birthday;

(2) that the deceased engaged in further sexual activity with the prisoner during the year 2001; and

(3) that there was a further sexual advance by the deceased shortly before the killing occurred.

7 The issue of provocation having been raised, it was, of course, for the Crown to negative provocation.

8 Whilst the verdict of the jury makes it clear that the Crown failed to negative provocation, the verdict does not make it clear where the Crown failed in that task. There was really no challenge to the evidence that the prisoner gave about what occurred on his sixteenth birthday. What occurred in the year 2001 the Crown contended was consensual; what the prisoner contended happened immediately before the fatal attack was very much in issue. The Crown vigorously submitted to the jury it would reject the prisoner’s account of events at the deceased’s home on New Years Day. Since there were the three areas to be considered by the jury and since their verdict does not disclose in relation to which area or areas the jury determined that the Crown had failed to negative provocation, it is for me to determine upon what basis provocation reduced the crime committed by the prisoner from murder to manslaughter. I must determine the facts for myself in a manner which is consistent with the verdict of the jury: see R v Martin (1981) 2 NSWLR 640; R v Mills (1985) 17 A Crim R 411; R v Sandford (1994) 72 A Crim R 160 and R v Isaacs (1997) 41 NSWLR 374. This means, of course, that I must approach my task recognising that the jury has found that the Crown has failed to negative provocation. It is not the law that I must accept that view of the facts which is most favourable to the prisoner: see R v Harris (1961) VR 236; Martin (supra); Mills (supra); and Sandford (supra).

9 In the joint judgment of the members of the Court of Criminal Appeal in Isaacs (supra), Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ identified constraints imposed upon the sentencing judge in the task of determining the facts relevant to sentence, which their Honours expressed as follows:

“1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury: R v Harris [1961] VR 236; see also Kingswell v The Queen (1958) 159 CLR 264 at 283, per Mason J.
2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. The fixing of an appropriate sentence ordinarily involves an exercise of judicial discretion, and it is for the judge to find the facts which are material to that exercise of discretion: Savvas v The Queen (1995) 183 CLR 1.
3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. This may produce the result that, in a particular case, the view of the facts which the judge is obliged to take is different from the view which the judge would have taken if unconstrained by the verdict: cf Maxwell v The Queen (1995) 184 CLR 501. In the present case, for example, a trial judge might have considered that the facts supported a verdict of murder, not manslaughter; nevertheless, the judge would be obliged to sentence on the basis that the case was one of manslaughter. The fact that a judge may not agree with a jury's verdict, and thus may be required to sentence on a basis different from the judge's personal view of the case, is an inevitable consequence of the division of functions inherent in trial by jury.”

10 I must heed the principles expressed above.

11 It is necessary to consider the evidence that bears upon the various sexual assaults allegedly committed by the deceased.

(1) The sexual assault on the prisoner’s sixteenth birthday

12 The deceased and the prisoner’s mother and the prisoner’s stepfather were friends. On the occasion of the prisoner’s sixteenth birthday, the prisoner attended the Guildford Bowling Club with his mother and his then stepfather-to-be, the deceased, and others. After leaving the club the prisoner, his stepfather and his mother went back to the deceased’s home. At that time the prisoner’s stepfather was living in a granny flat at the back of the deceased’s home. The prisoner had already been drinking at the club and more alcohol was consumed at the prisoner’s home. The deceased invited the prisoner to watch a pornographic video and the prisoner did so. The prisoner said that the deceased put his hand down the prisoner’s pants and into contact with the prisoner’s penis. The prisoner said that the deceased tried to masturbate him and offered to engage in sexual intercourse with him. The prisoner said he told his mother what happened that night, but his mother did not take the matter seriously. The prisoner said that he told his father about the assault some six weeks later.

13 The deceased’s sister gave evidence at the trial. Her brother had told her he was bisexual and her brother told her of the alleged assault on a sixteen year old boy. The deceased told his sister that he had given the boy something to drink and put on a R rated movie and had shown the boy how to relieve himself, although he said he had not touched the boy.

14 The Crown did not really contend that the sexual assault the prisoner described as having happened to him at the age of sixteen did not occur; rather, the Crown put to the jury that the killing eleven years later was not a result of provocation but was a revenge killing.

15 On my assessment of the evidence, the Crown did not eliminate as a reasonable possibility the occurrence of the sexual assault allegedly committed eleven years before the killing on the issue of provocation. Indeed, I think it likely that there was such an assault and that it affected the prisoner deeply. The assault occurred at a time at which the prisoner was emotionally vulnerable by reason of his age and because of the failure of the marriage of his parents.

(2) The alleged sexual assaults in the year 2001

16 The prisoner gave evidence of three incidents which he claimed occurred in the year 2001. Each of these incidents the prisoner alleged occurred at the deceased’s home. On the first occasion, the prisoner said that the deceased tried to fellate him and he did not stop the deceased because he said he did not know how to do so. On that occasion the prisoner said that he went to the deceased’s home to collect some cash for work he had done for a man named Shultz, who conducted his business at the same premises as those managed by the deceased. In these circumstances the prisoner described what happened between himself and the deceased as being “as if it was pay-back.”

17 There were two similar incidents in similar circumstances according to the prisoner and these occurred in May 2001 and September 2001.

18 In cross examination as to this group of alleged sexual assaults, the prisoner was asked these questions and gave these answers (T 246):

“Q. You said that it was the same thing repeated each time, correct?
A. That's right.

Q. So the jury is to understand those experiences in this way, that you went to Mr Powell's home because you had not got your pay, correct?
A. Yes.

Q. And that he was going to give you the money until the pay arrived?
A. Yes.

Q. And when you went there each time the pornographic video was put on?
A. Yes.

Q. Each time there was drinking of alcohol?
A. Yes.

Q. And each time he fellated you?
A. Yes.

Q. With your permission or without it?
A. Without it.

Q. Did you resist him on either occasion?
A. I pushed him away.

Q. Anything else?
A. That was all, no, nothing else.

Q. Could you tell us please how Mr Powell was able to fellate you against your wishes, could you do that?
A. Because I had frozen up, I didn't know what to do, I didn't know how to stop him.”

19 The prisoner told the police about this series of incidents in his lengthy recorded interview (Exhibit O). He did not say that the incidents were non-consensual. The relevant extract from the interview is the following:

“Q393 O.K. Other than the incidents of abuse with Mr Powell, you, you were drawn briefly into when you were 16, has there been any other incidents with him?
A There’s been a couple of times where he’s given me money or given me beers or given me some sort of drink and I feel obliged to repay him and I’ve done that, three or four times and I hated doin’ it, but it was just the fact that I didn’t like owing him, so I thought, all right get that over and done with, and that’s about it.
Q394 Can you tell me, can you tell me what you mean by repaying him, if you can, do you want to discuss that with us?
A Well, it’s to do with sex mate and that’s about all I’d really like to say about it now.
Q395 O.K. So, am I correct in assuming that, when you say you repay him, you repay him by some type of sexual favour, one way or the other?
A Yeah.”

20 And then later:

“Q404 In, in these past incidents where you’ve felt you’ve had to repay him, where, where have these incidents taken place at?
A His place
Q405 O.K., and is it the case that in those past incidents, the same sort of scenario’s happened, you’ve gone to his place, a porno movie’s been put on, or?
A Yeah, yeah.”

21 The Crown submitted to the jury that these episodes in 2001 were not to be viewed as sexual assaults at all but rather as consensual episodes. On the other hand, Mr Stratton submitted that these episodes ought not to be regarded as consensual because the prisoner was in what ought to be regarded as “a subservient relationship to a paymaster”. The deceased had financial power over the prisoner because the prisoner was dependent upon the deceased to be paid for work which the prisoner had done.

22 The Crown did not eliminate as a reasonable possibility the occurrence of these three incidents, but, to my mind, it did eliminate as a reasonable possibility that the incidents were of a non-consensual nature. There was ample opportunity for the prisoner to have told the police in the recorded interview that these were sexual assaults but the prisoner did not make this assertion to the police, and I do not consider his failure to do so could be explained by embarrassment. I conclude that the prisoner was a consenting partner, albeit an unenthusiastic one in respect of what occurred in these three episodes.

23 These three incidents are not, however, to be dismissed as irrelevant. Whilst not constituting provocation, it seems to me in context they should be regarded as adding fuel to the effect of what happened to the prisoner on his sixteenth birthday because the prisoner resented his continuing involvement with the deceased.

3. The alleged events on New Years Eve/New Years Day

24 On New Years Eve the prisoner was at the Guildford Bowling Club with his mother and stepfather and others. The deceased was also there. The prisoner went home with his mother and stepfather but then decided to go out again and returned to the club and then went on to the deceased’s home. The prisoner said that the deceased had offered to lend him money. According to the prisoner, he and the deceased were drinking in the lounge room and a pornographic video was being played. The prisoner said that the deceased went over to him and started to rub his leg, rubbing his hand up towards the prisoner’s groin. The prisoner said he left the lounge room and went to the kitchen. He then went back to the lounge room and sat down and thinks he started to fall asleep. Then he became aware that the prisoner was kneeling between his legs, touching and kissing his penis which was out of his trousers. The prisoner said he was angry, scared, confused and shocked, and went to the kitchen again. Here he said the deceased, having followed him, put his hand on the back of the prisoner’s neck, forcing the prisoner towards him and the prisoner was uncertain as to whether the deceased was going to make him fellate the deceased. The prisoner said that the thought of what had happened on his sixteenth birthday and in 2001 came into his mind and the next thing he remembered the deceased was on the floor and the prisoner was stabbing him.

25 Now that account of events leading up to the fatal assault committed by the prisoner was strenuously challenged by the Crown having regard to the prisoner’s subsequent conduct. In the first place there was no mention of any sexual assault when the prisoner made the 000 call, nor did he tell Constable Molloy when that police officer attended the scene. Then, when the prisoner was being escorted to the police van outside the deceased’s home, there is evidence, which I accept, that the prisoner said to his mother: “I got him, Mum. Revenge is sweet.” Then there is the recorded interview, which was a very thorough interview.

26 In the 000 call, according to the record of it (Exhibit A2), the prisoner said: “I just slit a man’s throat. That’s all.” Then, later, he was asked: “Why did you do this?”, to which he responded: “Oh, a long thing. A lot of reasons. Are you gunna come round or what?”

27 When Constable Molloy arrived at the house of the deceased and the prisoner gave an account of events, the prisoner said, when asked why he did what he did:

“He played with me when I was sixteen and I have been waiting to get him back…I led him on…I didn’t think I would kill him. I just went nuts, mate. I had an opportunity to get him and I did, and it’s as simple as that. I was going to chop his willy off and I got a bit too carried away.”

28 And later he said:

“I finally couldn’t take it any more…I couldn’t take it any more.”

29 When asked was there anything he wanted to add, the prisoner said further:

“Apart from the fact the cunt’s an arsehole, I have been waiting to get a chance to get him. I had my chance so I took it.”

30 When cross examined at the trial about his conversation with Constable Molloy, the prisoner claimed he could not remember that conversation, but I am satisfied as to the reliability of the evidence Constable Molloy gave.

31 In the recorded interview, the prisoner had abundant opportunity to tell the police about any sexual assault which occurred immediately before the killing. I have read and re-read the transcript of that interview, Exhibit O. Of particular relevance in relation to this issue are the answers to questions 53, 58, 59, 98, 103, 110, 114, 119, 126, 194, 219, 223, 224 and 273-284. I do not propose to record that material here. However the significance of the recorded interview is that it contained no suggestion that the deceased made any sexual advance upon the prisoner before the deceased was attacked.

32 Some time after that interview was completed at 6.14 am on 1 January, 2002, Constable Lambert interviewed the prisoner again to take him through what he had said to Constable Molloy at the deceased’s home, and the prisoner confirmed that he had said what Constable Molloy attributed to him. The prisoner sought to add nothing to that account.

33 Both the prisoner’s parents, however, gave evidence that the prisoner complained to them about the deceased’s conduct before he was killed.

34 Mrs Dixon said that she was allowed to visit her son in the cells under the Parramatta Police Station on New Years Day and that she asked her son why he did what he did. According to Mrs Dixon, the prisoner told her that: “He tried it on again”, and Mrs Dixon assumed that what he meant was that the deceased had molested him again, and that her son had just snapped.

35 The prisoner’s father first spoke to his son on the telephone on 2 January 2002. Mr Marlow said the prisoner called him at a time when the prisoner was being processed on arrival at Silverwater Remand Centre. Mr Marlow said he asked his son: “Did he have a go at you again, mate?”, to which his son responded: “Yes.” Later, Mr Marlow visited his son at Silverwater. This was at a time after the prisoner’s bail application in February 2002. According to Mr Marlow, the prisoner told him that he was in the kitchen and he pushed the deceased away because the deceased was attempting to molest him again. Mr Marlow said he urged his son to tell the police about it and the prisoner explained that he had not told the police the complete truth because he was too embarrassed to talk about having been sexually molested.

36 Mrs Dixon first disclosed what her son had said to her at the police station and Mr Marlow first disclosed what his son had said over the phone and on the visit to Silverwater after the evidence had been completed in the earlier trial of the prisoner, and this would explain why neither parent gave evidence about the disclosure at the earlier trial. At the trial before me, each of these witnesses was cross examined about the conversations of which evidence was given, and whilst it is surprising that the disclosure was first revealed at so late a point of time as it was, in submissions on sentence the Crown recognised that it was really not in a position to challenge the evidence of the prisoner’s mother and father about their conversations. I accept that the prisoner made the complaint to his mother about which she gave evidence and also that he made the complaint to his father about which Mr Marlow gave evidence. Of course it does not necessarily follow that the assertions the prisoner made to his parents were true.

37 I have given much thought to the competing submissions of counsel. The Crown has submitted that the prisoner’s explanation for not telling the police about the sexual assault if it occurred before the killing is unacceptable, and that the Court would not accept that the prisoner would have been too embarrassed to speak of it during the course of the long recorded interview. Moreover, the content of that interview when the prisoner explained what he did and why was not consistent with it having been triggered by a sexual assault that night. There is much force in those submissions.

38 On the other hand, Mr Stratton has submitted that a sexual advance renders explicable what the prisoner did, and there is the evidence that supports the assertion that a pornographic video was being played. There was alcohol being drunk and there had been the earlier sexual advances, not only when the prisoner was sixteen but also during the year 2001. An advance by the deceased on this final occasion would be anything but inconsistent with what had occurred in the past, and, indeed, would have been altogether consistent with what had happened on those three occasions in 2001.

39 Mr Stratton submitted that there must have been some trigger incident immediately before the prisoner attacked the deceased and the most likely trigger was an advance by the deceased such as the prisoner claimed to have occurred.

40 The verdict of the jury indicates a rejection of the Crown case that the prisoner killed the deceased for revenge. I am bound to adopt a view of the facts which is consistent with the verdict of the jury, involving as it did an unfavourable determination from the point of view of the Crown on the issue of provocation. I do not consider that, viewed in isolation, the sexual assault on the occasion of the prisoner’s sixteenth birthday could have provoked the prisoner to act as he did eleven years later, and I have determined that the sexual acts in 2001 were consensual.

41 The very nature of the injuries inflicted by the prisoner evidences that he acted with intent to kill. The evidence establishes that beyond reasonable doubt. The verdict of the jury establishes that the Crown failed to prove beyond reasonable doubt that the prisoner did not commit the acts causing death whilst he had lost his self control. The verdict further establishes that the Crown failed to prove beyond reasonable doubt that the provocative conduct of the deceased was not such as could have caused an ordinary person in the position of the prisoner to so lose his self control as to have formed an intent to kill or to cause grievous bodily harm. The prisoner’s assertion as to what occurred just before the killing does afford an explanation for what he proceeded to do. To my mind, this killing was not to be explained only by provocative conduct of the deceased on the prisoner’s sixteenth birthday, whether that misbehaviour is viewed in isolation or in conjunction with the later episodes of sexual activity in 2001. For these reasons, and constrained as I am by the jury’s verdict, I am unable to find, and hence I do not find beyond reasonable doubt, that there was no such assault as the prisoner claimed occurred on the night of the killing.

42 Hence the prisoner is to be sentenced upon the basis that the Crown failed to prove that the prisoner was not acting under provocation when he killed the deceased, and that the Crown failed to eliminate as a reasonable possibility:

(i) a sexual assault occurring on the prisoner’s sixteenth birthday;

(ii) a sexual assault occurring on the night of the killing.

43 Matters to be taken into account in sentencing in cases of provocation manslaughter were identified in the much cited judgment of Hunt CJ at CL in R v Alexander (1995) 78 A Crim R 141. His Honour there identified three particular matters to be taken into account in such cases (at 144):

“(1) the degree of provocation offered (or, alternatively, the extent of the loss of self-control suffered), which when great has the tendency of reducing the objective gravity of the offence, eg Morabito (1992) 62 ACrimR 82 at 86;
(2) the time between the provocation (whether isolated or cumulative in its effect) and the loss of self-control, which when short also has the tendency of reducing the objective gravity of the offence, eg, ibib (at 86); and
(3) the degree of violence or aggression displayed by the prisoner, which when excessive has the tendency of increasing the objective gravity of the offence, eg Kinmond at 414, 417; Collingburn at 304.”

44 As to the first of the above matters, the provocation constituted by the cumulative effect of the sexual assaults referred to in para 42 above, I assess as of real significance, although it is not to be overlooked that there had been the earlier consensual sexual activity in 2001. On the other hand, whilst I consider the prisoner resented that earlier consensual activity and was probably thereby made more vulnerable to the second provocative assault to be regarded as having occurred later, I do not lose sight of the evidence that the prisoner gave that as he was walking to the club he was thinking “If he tried anything, then I would do something” (T 236, 238). That evidence conveys that, according to the prisoner, he was contemplating the possibility when he was on the way to the deceased’s home that he might be the subject of a sexual advance. Consistently with the reasoning of Bell J in R v Johnson [2003] NSWCCA 129 at para 48, this is a circumstance tending to lower the degree of provocation. Nonetheless, I do assess the degree of provocation as being of real significance.

45 As to the second consideration identified by Hunt CJ at CL in Alexander, the time between the second of the acts of provocation to be taken into account and the loss of self control was very short, thus tending to reduce the objective gravity of the offence.

46 As to the third of the matters addressed in Alexander, the degree of violence was extreme, as reflection on the post mortem findings set out in para 3 above emphasises.

47 This was an extremely violent killing and the victim was defenceless when the prisoner attacked him. Making due allowance for the first and second matters identified in Alexander, I regard the objective gravity of this crime as high.

48 Three victim impact statements were received into evidence pursuant to s 28(3) of the Crimes (Sentencing Procedure) Act 1999. Those statements were from Mrs Cobi Powell, the wife of the deceased, and from Mrs Julie Burton and Mrs Patricia Powell, sisters of the deceased. I have considered each of those statements and recognise the grief and loss experienced by close members of the deceased’s family such as has been described in those statements. Consistent with authority, however, it is not appropriate that I take those statements into account for the purpose of determining what sentence I should impose upon the prisoner: see R v Previtera (1997) 94 A Crim R 76; and R v Bollen (1998) 99 A Crim R 510; and s 28(4) of the Crimes (Sentencing Procedure) Act.

49 The prisoner was born on 13 October 1974, so that when he committed this crime he was twenty-seven and he is presently twenty-nine years of age. He has one brother and two sisters and his parents separated in his childhood. He did not receive his Higher School Certificate but after leaving school he undertook a course in hospitality practices in Queensland and then a course through the Commonwealth Employment Service at Newcastle. He then joined the Navy in 1995. Whilst in the Navy he had a serious car accident, suffering from a number of fractures and his spleen was removed. In his Naval service he experienced some problems with discipline and came under adverse notice by reason of an altercation with a taxi driver and some episode when he smuggled a girl into his room. He was perceived to have a drinking problem and was required by the Navy to undertake a rehabilitation course concerning that problem. He did not complete the course and was discharged from the Navy.

50 Following that discharge he returned to Newcastle to live with his father and the only work he did in Newcastle was unpaid voluntary work. He then moved to Sydney with his father in February 1999 before going to Scotland in August 1999. After his return to Australia in June 2000 he worked for Parcel Post and he had a second casual position with Mr Steffen in a panel beating business that Mr Steffen conducted at the rear of a car dealer’s premises which were managed by the deceased.

51 In short, the prisoner’s employment history is unsettled and unimpressive, and the prisoner when seen by Dr Nielssen, forensic psychiatrist, acknowledged to that doctor that he had developed an alcohol abuse disorder during his early adult life. Dr Nielssen assessed the prisoner on 16 September 2003, and his report dated 30 September 2003 is before me. In that report Dr Nielssen opined:

“Mr Marlow reported normal early development but was affected by conflict between his parents during his adolescence and did not complete high school because of disruption to his final year arising from his parent’s separation. He developed an alcohol abuse disorder during early adult life probably contributed to by the culture of heavy drinking in the Navy.
Mr Marlow suffered what would be considered to be a head injury of moderate severity at the age of twenty one, from which he appears to have largely recovered as there was little evidence of cognitive impairment at interview. However, any subtle residual brain damage is likely to have resulted in impaired tolerance to the effects of alcohol, and Mr Marlow reported frequent blackouts.
There is a family history of depression, as his brother and grandfather have both been treated for what he understands to be depression. Mr Marlow reported becoming despondent whilst recovering from his accident and also reported significant symptoms of depression in the period after the breakdown of his engagement, although the symptoms were difficult to separate from the predictable effects of more heavy drinking in this period. He was considered sufficiently depressed to be prescribed antidepressant medication in the period after his arrest.
Mr Marlow did not have a history of antisocial conduct, either as a juvenile or as an adult, which is the main predictor of future violence. He has a significant alcohol abuse disorder, which in combination with the likelihood of subtle brain damage is a risk factor for further offending and he should have further counselling with the goal of complete abstinence from alcohol. He may also benefit from treatment with one of the newly available anti-craving drugs after his release.
Mr Marlow was not assessed to be depressed at the time of the interview, but he carries a risk of becoming depressed in future. Depressed mood was probably a factor contributing to Mr Marlow’s state of mind at the time of the offence and he should consider maintaining contact with a psychiatrist in the period after his release.”

52 The prisoner has no prior convictions.

53 Since he was taken into custody on the date of his arrest, 1 January 2002, the prisoner has done a stress management course and has applied to do his Higher School Certificate, which he hopes to be permitted to do in custody. Whilst in custody on remand he has worked at a business called Wirelink and he said he had a position in charge of cutting cables.

54 The prisoner gave evidence in the proceedings on sentence, expressing his regret to the deceased’s family:

“I do feel terrible about what’s happened. I feel bad for his family, I feel terrible for what’s happened. I know, I do have an idea of what they are going through with my previous work. I have worked with people in that position before and I truly am sorry about having to put them through that and I am sorry that they have been – they have heard things about their father or their son or their brother that had to come out at the trial. I am sorry they had to go through it.
I know how I would feel if I was in their position and I really do regret having to put them in that position and I am sorry the whole thing has ever happened.
Q. You have heard read a victim impact statement in which fears are expressed about you from the family of Mr Powell. Is there anything you want to say about that?
A. Yes, it’s the last thing on earth I would want to do. I have no grudges or animosity towards his family. No, there is no need for any fear from me. It’s the last thing I ever want to do.”

55 I accept that the prisoner does regret the grief and distress he has caused the family of the deceased. I am, however, by no means convinced that he is genuinely contrite for having taken the life of the deceased. Nevertheless, I consider that the prisoner’s prospects of rehabilitation are reasonable.

56 The prisoner offered a plea of guilty to manslaughter when first arraigned in this Court on 6 September 2002, some seven months before his first trial began. The prisoner pleaded not guilty to murder but guilty to manslaughter at his first trial, at the conclusion of which it was necessary to discharge the jury before verdict. He pleaded not guilty to murder but guilty to manslaughter again at this trial. Although the plea was not accepted, in the circumstances the prisoner is entitled to benefit from the utilitarian value of an early plea: see R v Oinonen [1999] NSWCCA 310. Mr Stratton submitted that the prisoner should be treated as having offered his plea at the first available opportunity since he pleaded when he was first represented by the Public Defender. However, no such plea was offered in the Local Court and what I am addressing is the utilitarian value of the plea. Certainly the prisoner is entitled to a discount, but not, in my opinion, to the maximum discount according to R v Thomson (2000) 49 NSWLR 383 at para 160. I propose to allow a discount approaching twenty percent.

57 I have had regard to the provisions of s 21A of the Crimes (Sentencing Procedure) Act in determining the appropriate sentence.

58 Reference has been made by counsel to sentences imposed in other cases where the issue of provocation has arisen. In Alexander the learned sentencing judge scheduled sentences in cases where a successful provocation “defence” had been taken into account. There were eleven such cases and the total sentences ranged from one year four months to eight years six months. In another case mentioned in Alexander, but there described as wholly exceptional, a deferred sentence was imposed.

59 Mr Stratton acknowledged that the range of sentences in this area seems to have increased since Alexander and a schedule was produced by him that demonstrated this. Sentences in that schedule of some forty-seven cases ranged from cases where bonds were granted to a case where a head sentence of fourteen years was imposed with a minimum term of ten years. No useful purpose would be served by my embarking upon a review of all those cases since, obviously, so much depends upon the particular facts and circumstances of each case.

60 The Crown, however, invited special attention to R v Johnson (supra) because of what it was submitted were similar features. In that case the offender was twenty-two when he killed his victim. The victim had sexually abused the offender a number of times nine years earlier and that abuse was of a gross kind, including anal penetration. On the day of the crime, the offender visited the deceased’s home seeking cannabis, a drug to which the deceased had introduced him nine years earlier. When the offender entered the victim’s home, the victim approached him from behind and rubbed himself against the offender in a sexually explicit way. Then the offender pushed the victim away, whereupon the victim picked up a knife. There was a struggle in which the offender took hold of the knife and used it to stab the deceased. A number of stab wounds were inflicted.

61 The jury’s verdict of manslaughter was determined to be by reason of provocation. The offender had a conviction for assault with intent to rob with wounding and after a period on parole, his parole was revoked for some relatively minor offences. He was again released on parole and was still on parole when he killed his victim. A subjective feature of the case was that the offender had behavioural problems that had been exacerbated by the victim’s abuse of him as a thirteen year old child.

62 The sentencing judge imposed a sentence of ten years with a minimum term of seven years six months. However, the Court of Criminal Appeal determined that the judge was in error in setting this sentence because he had not made allowance for the offender’s willingness to plead guilty to manslaughter. An offer to plead guilty to manslaughter had been made in the week before the trial. Hence the Court of Criminal Appeal resentenced the offender, imposing a head sentence of nine years imprisonment with a non parole period of six years nine months.

63 The Crown submitted in the event that I did not exclude as a reasonable possibility a sexual assault on the night of the killing, the appropriate sentence would be “somewhere like” the sentence imposed in Johnson.

64 There are similarities between the present case and Johnson but there are also differences, and I must recognise this. I instance some of these differences. The extent of the violence was greater in the present case than in Johnson, and the deceased was at all times defenceless, offering no resistance. On the other hand, this prisoner has no prior record. There were differences in the extent of the provocation to be measured as well. The prisoner offered his plea of guilty to manslaughter much earlier than in Johnson. Here it was offered when the prisoner was first arraigned.

65 Examination of any number of cases with their varying circumstances and sentences merely adds emphasis to the much cited dicta of Gleeson CJ in R v Blacklidge (unreported, NSWCCA, 12 December 1995), where his Honour said (at p 4):

“It has long been recognised that the circumstances that may give rise to a conviction for manslaughter are so various and the range of culpability is so wide that it is not possible to point to any established sentencing tariff that can be applied to such cases. Of all crimes, manslaughter throws up the greatest range of circumstances affecting culpability.”

66 Since this offence was committed prior to 1 February 2003, s 44 in its earlier form here applies. Hence, I am required, firstly, to set the term of the sentence and, secondly, to set a non parole period for that sentence which must be not less than three-quarters of the term of the sentence unless I find special circumstances for it to be less.

67 Mr Stratton submitted that this is an appropriate case in which to find special circumstances having regard to the fact that this is the prisoner’s first term of imprisonment. There will be a need for an extended period of supervision following his release in the interests of his rehabilitation.

68 It was pointed out in R v Phelan (1993) 66 A Crim R 446 by Hunt CJ at CL that for a finding of special circumstances

“the starting point is the need or the desirability of a longer than usual parole period, not the need or the desirability of a shorter than usual non parole period.”

69 I am not satisfied that it is necessary or desirable that the sentence be structured in such a way that the non parole period is less than three-quarters of the term of the sentence. I am not satisfied that there are special circumstances requiring or rendering it desirable that the prisoner be given a longer opportunity for parole than that which I am about to set. It seems to me that the parole period I have in mind is sufficient to address the needs of the prisoner concerning rehabilitation, including the need for counselling identified by Dr Nielssen, and I do not consider that the circumstances of this case warrant that I should determine a lesser non parole period than I am about to fix.

70 I propose to backdate the sentence to 1 January 2002, since which time the prisoner has been in custody.

71 But for the need to allow the discount which the prisoner’s early offer of a plea of guilty to manslaughter demands, I would have imposed a total sentence of eleven years imprisonment but, allowing for that early offer, and constrained as I am by the verdict of the jury, I pass sentence as follows: I sentence the prisoner to a term of imprisonment of nine years, commencing on 1 January 2002 and expiring on 31 December 2010. I fix a non parole period of six years nine months, commencing on 1 January 2002 and expiring on 30 September 2008. I specify as the first date upon which the prisoner is to be eligible for release on parole 30 September 2008.

**********

Last Modified: 12/09/2003