R v Merrick (No 5)

[2016] NSWSC 661

Supreme Court

New South Wales

Medium Neutral Citation:	R v Merrick (No 5) [2016] NSWSC 661
Hearing dates:	9 May 2016
Date of orders:	23 May 2016
Decision date:	23 May 2016
Jurisdiction:	Common Law - Criminal
Before:	Wilson J
Decision:	The offender is sentenced to imprisonment comprising a non-parole period of 8 years and 3 months and a balance of term of the sentence of 2 years and 9 months. The total term of imprisonment is one of 11 years.  The sentence will date from 22 March 2016. The offender will be eligible for release on parole upon the expiration of the non-parole period on 21 June 2024. The total term of the sentence will expire on 21 March 2027.
Catchwords:	CRIMINAL LAW – sentence – manslaughter – verdict of guilty after trial – single blow occasioning death – domestic violence – question of the use to be made of victim impact statements – relevance of a conditional offer of plea of guilty prior to trial – importance of general deterrence
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Ernest Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 Field v R [2015] NSWCCA 332 Hopley v R [2008] NSWCCA 105 Morton v R [2014] NSWCCA 8 R v AB [2011] NSWCCA 229 R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep) R v Borkowski [2009] NSWCCA 102; (2009) 52 MVR 528 R v Bryce (No 5) [2014] NSWSC 1184 R v Cardoso (2003) 137 A Crim R 535 R v Carroll; Carroll v R [2010] NSWCCA 55 R v Dodd (1991) 57 A Crim R 349 R v Fidow [2004] NSWCCA 172 R v Johnson [2003] NSWCCA 129 R v Lavender [2005] HCA 37; (2005) 222 CLR 67 R v Loveridge [2014] NSWCCA 120 R v Oinonen [1999] NSWCCA 310 R v Previtera (1997) 94 A Crim R 76 R v Thompson; R v Houlton [2000] NSWCCA 309; (2002) 49 NSWLR 383 The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 Villalon v R [2015] NSWCCA 229
Category:	Sentence
Parties:	Regina Ross Albert Merrick
Representation:	Counsel: Mr B Campbell (Crown) Ms T Evers (Accused)   Solicitors: Solicitor for Public Prosecutions (Crown) Armstrong Felton (Accused)
File Number(s):	2013/00369082
Publication restriction:	None

Judgment

1. During the course of his trial for the murder of Marika Ninness, which commenced before this Court on 29 February 2016, Ross Merrick gave an account of the events of the night of 7 December 2013 which was wholly inconsistent with either the commission of the offence of murder, with which he stood indicted, or the commission of the statutory alternative of manslaughter. By the verdict of guilty to the alternative charge, returned by the jury on 29 March 2016, the jury necessarily rejected his evidence as to what had occurred that night.

2. The offender sought acquittal for both charges from the jury and his case was, reduced to its essentials, one of accident.

3. It was the offender’s sworn evidence that, whilst there was some contact between his elbow and Ms Ninness in the car park of the Greenhills Shopping Centre at East Maitland late on the night of 7 December 2013, he was not criminally responsible for the injuries sustained by her, or for her subsequent death on 21 December 2013. Since the Crown case for both murder and manslaughter relied upon the same factual events, necessarily it was the mental element of murder that the jury did not accept proved to the requisite standard.

4. By the verdict of guilty returned to the alternative charge of manslaughter, the jury indicated that it did accept beyond reasonable doubt that the offender deliberately struck Ms Ninness a blow to the head which was both unlawful and dangerous, and that this act led to Ms Ninness’s death two weeks later.

5. It now falls to this Court to determine the facts of the crime, consistent with the verdict of the jury, and to pass sentence upon the offender for the manslaughter of Ms Ninness. In so doing, it is necessary for the Court to find that any fact adverse to the offender has been proved on the evidence beyond a reasonable doubt: The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270, at [27].

The Background to the Events of 7 December 2013

6. Ms Ninness and the offender met earlier in 2013 through online contact via Facebook. They commenced a relationship soon after, in March or April 2013. At that stage, and for the whole of the ensuing period until Ms Ninness was fatally injured, the offender was employed interstate on a “fly in – fly out” basis, and lived in either Port Macquarie or in the Maitland area, during those periods when he was not away for work.

7. Ms Ninness lived for part of that time with her three children and a friend, Ms Megan Beukers, but from around September 2013 she and the children lived with the offender at a property the couple leased in Ashtonfield.

8. Whilst there is no doubt on the evidence that Ms Ninness loved the offender, at least initially, the relationship was tumultuous. During the trial, the Court heard evidence from family and friends of Ms Ninness who had had an opportunity to observe aspects of the relationship, and the weight of the evidence was that it was a deeply troubled one.

9. Evidence from witnesses and in the form of text messages (Exhibit AH), established that there were frequent, albeit short lived, separations between the couple, and Ms Ninness expressed considerable ambivalence about her relationship with the offender and its continuation.

10. The text messages, in particular, evidence frequent running arguments between the couple, with abusive and derogatory language routinely employed, by both, but to a significantly greater extent by the offender. Ms Ninness on an occasion accused him in text exchanges of posting crudely abusive information about her on the public website Facebook (in late November 2013). The offender, in his evidence, did not seek to deny that he had done as Ms Ninness asserted he had.

11. There was an instance of violence from the offender to Ms Ninness on 27 October 2013, documented in the text messages, and reported by Ms Ninness to others. On that occasion, the couple had argued in their bedroom in the Ashtonfield house, and the offender had assaulted Ms Ninness, such that she attended hospital for treatment.

12. Ms Ninness’s eldest child was at home when this argument occurred, and heard raised voices followed by a loud banging sound. The sound is likely to have been caused by the offender propelling Ms Ninness into a wall, causing her head to penetrate the cladding of the wall. There was additionally an injury occasioned to Ms Ninness’s tailbone.

13. Speaking to Ms Ninness’s son immediately after this assault, the offender told the child that he hadn’t known his own strength.

14. The volatility of the relationship is clear from the history of it, evidenced to a considerable extent by text messages exchanged between the couple, and to some extent, from those exchanged between Ms Ninness and her friends, and the offender and Ms Ninness’s friends.

15. It seems that Ms Ninness tried repeatedly to end her relationship with the offender and, just before she was fatally injured, had determined to leave him, it seems intending to reconcile with her husband. As late as 4 December 2013, Ms Ninness tearfully told one of her friends, Karleen Jones, that she feared for her life and wanted to leave the offender, but could not as she was frightened that he might hurt her. She said that she planned to leave him as soon as their joint lease of the Ashtonfield house expired. On the same day she told another friend, Kristy Hardy, that the offender had threatened to kill her or her husband if she left him. She asked to borrow money from a business acquaintance, telling him something like she needed to get out of her home and away from her boyfriend, before she was killed.

16. The broader history of the relationship and its abusive nature, and the assault of 27 October 2013, is of relevance not because the offender is to be sentenced for it, but because of what it says about the offender’s prior, generally good, character, and because of the warning that it should have constituted to the offender about his conduct towards Ms Ninness.

17. Although he showed some reluctance to acknowledge this obvious fact in evidence (T755), he was a much bigger individual than Ms Ninness, and very much stronger than her physically. The injury he did her on 27 October 2013 should have been a clear warning to him about the harm he could cause if violent towards Ms Ninness.

The Events of 7 December 2013

18. On the evening of 7 December 2013 Ms Ninness accompanied the offender to the George Tavern (“the Tavern”) at East Maitland. CCTV footage records their arrival there at about 9 pm. They remained at the Tavern for the next two and a half hours or so, placing bets, playing pool, and drinking. Until shortly before they left, their interaction appeared to be that of an affectionate couple.

19. Although it was in issue at trial, the precise number of drinks each consumed is not certain. Suffice it to say that it was not so much as to affect the capacity of either to function in a normal way, as is evident from the footage from the George Tavern and from McDonalds, (Exhibits P & Q) with each walking in an unaffected way, Ms Ninness in her customary high heels, and sending text messages without apparent difficulty (see also T235:50 and T237:38). The level of intoxication of either was not such as to have any further bearing on the events of this night in my conclusion.

20. Shortly before each separately left the Tavern, there was an argument between the offender and Ms Ninness. Since I would not accept the evidence of the offender about the events of this night unless it is supported by evidence independent of him, his evidence being evasive, implausible, and given in a manner indicative of mendacity, it is not possible to say what prompted the argument. Others observed the offender to proffer his face to Ms Ninness, and demand of her, “Just hit me” (Michael Farley, T236: 50).

21. Sidney Atkinson, working in the bar of the Tavern that night, saw a confrontation, and a heated discussion, and noted that the offender seemed to be “…standing over her a little” (T248:10). The attention of another of the bar staff, Zoe Styles, was drawn to the offender when he put his glass down on the bar “pretty… hard”, and demanded of Ms Ninness, “Are you fucking coming or not?” (T242:01 – 03).

22. The offender walked out of the bar alone. Ms Ninness remained for a short time before also leaving. Significantly, she chose not to follow the offender, or go to his car.

23. Ms Ninness made her way alone to the McDonalds restaurant at Greenhills, a short walk from the Tavern across Molly Morgan Drive. She ordered some food and waited for it to be served. She then stood for a short time eating the food she had bought. She was observed by another customer at the restaurant, Adellemaree Thomson, who had gone there with her children after an outing to see Christmas lights.

24. Whilst Ms Ninness was at the restaurant, the offender sent her a text message at 23:40, telling her, “You can get the kids out tonight.” He refused her suggestion that he pick her up with a message, “I Al t Moving” and “Fuck u, u can come” (Exhibit S).

25. Ms Ninness left McDonalds, walking across Molly Morgan Drive and the shopping centre car park in the direction of the shopping complex. She did not walk in the direction of the offender’s car, parked closer to the Tavern.

26. Ms Thomson, who was watching Ms Ninness, saw a male, the offender, approach Ms Ninness as she walked along, apparently endeavouring to get her attention. Ms Ninness kept walking, with the offender walking beside and sometimes in front of her. There is evidence that both were moving their arms and gesticulating.

27. Ms Thomson was sufficiently concerned by the offender’s actions to continue to watch the pair as they walked. At a point part way along the pathway through the shopping centre car park she saw the offender, who was then facing Ms Ninness, stop and swing an arm with elbow bent towards her, striking Ms Ninness to the head. Whilst the offender argued at trial that Ms Thomson’s evidence was unreliable and should not be accepted, the motion she described and demonstrated (T362-3; T370) was remarkably similar to that the offender himself demonstrated to others, and in CCTV footage, soon after. That is, a forceful and vigorous swinging motion of the arm, from right to left across the body at about shoulder height, with fist closed and elbow bent.

28. Ms Thomson, a wholly independent witness whose evidence I regard as generally reliable, saw Ms Ninness drop instantly to the ground, falling she thought, to a level lower than that to which she had been standing. She saw the offender move off for a distance of several metres, before returning to Ms Ninness’ side.

29. William George was also at McDonalds at about this time, getting takeaway at the drive through that runs parallel with Molly Morgan Drive. He saw the offender and Ms Ninness walking up the footpath between the drive through and the roadway and observed them to be having an argument. Ms Ninness was walking in front of the offender at that point and, from what Mr George saw, he thought that she wanted the offender to leave her alone and was trying to get away from him (T344). Although he could not hear what the offender said, he heard Ms Ninness yelling “Leave me alone. Go away from me” (T345:4-5). He saw Ms Ninness push the offender, and characterised what the offender was doing as “trying to egg her on” (T345:9) and “offering for her to hit him” (T345: 13).

30. Conduct of the nature that Mr George described in his evidence is similar to that observed by Michael Farley minutes before in the Tavern, and the coincidence leads me to conclude that each was accurate in their evidence about this, and the offender was trying to provoke Ms Ninness to hit him.

31. The offender denied that he pursued Ms Ninness, or that she told him to leave her alone, but I am satisfied that the evidence of Ms Thomson and Mr George in this regard is reliable and should be accepted.

32. At a point when the offender and Ms Ninness were on the pathway through the car park, still apparently arguing, Mr George turned away to take his order and, when he again looked towards them, he saw that the female was on the ground. Clearly the blow struck by the offender that felled Ms Ninness was struck quickly, consistent with the vigorous action seen by Ms Thomson, and later demonstrated to others by the offender.

33. As with Ms Thomson, Mr George saw the offender walk off in the direction of the Tavern where, the evidence establishes, his car was parked. Again, despite the offender’s denials in cross-examination, I am satisfied beyond reasonable doubt that he did not immediately go to Ms Ninness’s aid, instead walking away from her prone body for some steps, before returning to her side to try to assist her.

34. Adam Kuskunovic was at the shopping centre to pick up his step-daughter who had been out with her boyfriend, coincidentally also at the George Tavern. He saw a man and a woman who were facing each other, arguing. The man was standing with his back to Mr Kuskunovic. He mistakenly thought the couple was his step-daughter and her boyfriend and, seeing something that caused him to believe his step-daughter was “getting attacked” (T453), he ran towards the couple. He saw the woman fall to the ground, although he did not see any contact between the man and woman, no doubt because of the way they stood relevant to his position, and because he was running.

35. That Mr Kuskunovic did not see the offender walk away and then return is not significant in my view, given that, since he thought at that stage that it was his step-daughter on the ground, his focus would have been entirely on the fallen woman.

36. When Mr Kusunovic reached the pair the offender was kneeling beside a prostrate Ms Ninness saying, “I’m sorry Marika, I didn’t mean to do this” (T453:32-33). He asked the offender what he had done, and the offender told him, “We had [an] argument and I hit her with the elbow” (T453:33-34). The offender also referred to having served in Iraq. He told Judith Kuskunovic, who did not see what occurred but followed her husband to where Ms Ninness lay, that “I’ve done this before, I’ve hit her before” (T467:38; 50).

37. Janelle Allan who, after completing an evening shift, went to Greenhills to do some late night shopping, was also in the car park at this time. She saw something in her peripheral vision, a male, the offender, move his arm, and a woman, Ms Ninness, fall. At the time, she was some distance away and could only see the offender in silhouette. She heard an older man (Mr Kuskunovic) yelling, “he hit her, he hit her” (T497:24-25; T499: 27; T503:29). I accept that this occurred, even though Mr Kuskunovic did not give evidence of having said those words, and was without memory of it.

38. Ms Allan described the arm movement of the male and, although she referred to the arm as the man’s left, setting aside the question of which arm it was, her description is entirely consistent with those of Ms Thomson and of the offender. She saw the male’s arm up, with the left hand above shoulder height, move parallel to the ground with the elbow bent. She saw the woman fall (T497 – 498).

39. On all of the evidence, I am satisfied beyond reasonable doubt that there was an argument between the offender and Ms Ninness at the Tavern and the offender became angry. As Mr Farley observed, he tried to provoke her into hitting him. The offender walked out of the Tavern alone, after speaking aggressively to Ms Ninness (“are you fucking coming?”). Ms Ninness did not follow the offender, but went to McDonalds alone. The offender was still very angry, demonstrated by the text message he sent her demanding that she remove her children, including a very small child, from their shared home that night.

40. When she did not come to him, as he also demanded of her by text message, he sought her out and pursued her up the street, despite her clear indications that she wanted him to leave her alone. His conduct was such that, although there were only a relatively small number of people in the area at such a late hour, the attention of both Ms Thomson and Mr George was drawn to what was happening, and both watched as events unfolded, with Mr George turning away momentarily only to get his food.

41. At a point on the pathway through the car park approaching the shopping centre, the offender deliberately struck Ms Ninness a vigorous blow to the head, of some force, as seen by Ms Thomson and described and demonstrated by the offender. Although I cannot be satisfied beyond reasonable doubt as to precisely where the blow landed on Ms Ninness’s head, or whether the blow was delivered with a fist or an elbow, the latter being the most likely, I am satisfied beyond reasonable doubt that the offender, enraged by the argument he had had with Ms Ninness, and by her refusal to go to him, deliberately and vigorously swung a blow of some force and velocity (T411) directed at her head area, that connected with her head. That blow caused her to fall immediately to the ground.

42. Having regard to the evidence of Lieutenant Commander Alfonso Santos, I do not accept, even on the balance of probabilities, that the offender’s conduct was in any way connected with his military training. Lieutenant Commander Santos deposed that there was no instruction to Navy personnel in the use of an elbow strike, although conversely there was instruction as to the dangerousness of blows to the head, neck or spine of an individual (T582-583), with such blows to be avoided.

43. Necessarily, consistent with the jury’s verdict, the blow struck by the offender was one delivered without him having formed any intention to kill or do grievous bodily harm. It was an expression of rage and anger, an explosion of temper that caused him to lash out at Ms Ninness, striking her to the head.

18. The offender did that despite his much greater strength and size, and despite having some warning from the events of 27 October 2013 of the danger of the application of force by him to Ms Ninness.

19. As a result of the blow, Ms Ninness fell to the ground, striking her head on the hard surface of the car park, or perhaps on a concrete wheel stop in the vicinity. It is not possible to deconstruct the precise origins of the particular injuries sustained by Ms Ninness, but it is not necessary to do so. It is enough for the Court to be satisfied beyond reasonable doubt, as I am, that the offender’s unlawful and dangerous act caused those injuries. Ms Ninness sustained severe and ultimately fatal head injuries from the blow, or the resultant collision with the ground when she was knocked from her feet, or from the combination of both applications of force. However sustained, the offender is criminally liable for the injuries Ms Ninness received.

20. Bystanders, including Madelyn Butt, Mr Kuskunovic’s step-daughter, attempted to assist Ms Ninness, as did the offender. A number of calls were placed to the Triple 0 service, including one in which the offender spoke to the emergency operator. The transcript informs the offender’s state of mind at that time to a degree, but hearing his tone and manner of speech in the recording is most illuminating of the issue, particularly his claim in a rough and angry tone that Ms Ninness was “alright”.

21. Whilst I do not doubt that the offender, on realising that Ms Ninness was seriously injured, became very anxious about her, his initial response as caught in the Triple 0 recording is almost dismissive, and reflects his earlier movement away from her and towards his car, described by Ms Thomson and Mr George, that I am satisfied to the requisite standard occurred. Such a movement, albeit of fleeting duration, is consistent with the rage that had caused the offender to strike out unthinkingly at Ms Ninness.

22. Paramedics arrived at about 12.06am to find Ms Ninness deeply unconscious and not responsive to stimuli (T486-7). There was blood in the vicinity of her left ear, and a quantity of blood was later found on the bitumen surface of the car park (T487). Paramedic Matthew Ross recalled that “the majority of her head was covered in blood”, and there was “a soft boggy section to her skull” behind the left ear (T509:37; T511:16-17). Her limbs were abnormally extended indicating severe brain injury, her pupils fixed and dilated.

23. The offender told Officer Ross that there had been an argument and he had “elbowed” Ms Ninness in the face (T509:11-12). He demonstrated the movement to Officer Ross, who in turn demonstrated it for the jury. The movement was one of the right arm swinging in, across the body, and upwards (T510). During his demonstration, Officer Ross held his fingers closed in a fist, but when asked a clarifying question by myself, he said he was not certain whether the offender’s hand was closed or open (T510:33- 34).

24. Other than the issue of the closed or open position of the fingers, the motion the witness demonstrated was consistent with the description given in evidence by Ms Thomson of what she saw, and also with the demonstrations of the offender to police officers and later in the police holding cells at Maitland Police Station.

25. Upon admission to the John Hunter Hospital at about 12.45 on the morning of 8 December 2013 Ms Ninness’s condition was dire, with a Glasgow Coma Score so low as to be indicative of impending brain death. A CT scan revealed a large subdural haematoma with significant mass effect which required immediate surgery. There was very substantial mid-line shift of up to 20 millimetres, where a shift exceeding 5 millimetres is ordinarily regarded as quite significant. A fine linear fracture which extended full thickness through the petrous temporal bone on the left side was observed. On surgery considerable damage to the brain and the blood vessels to the brain was noted.

26. Despite extensive and exemplary surgical intervention to save Ms Ninness’ life, she showed no sign of recovery, with further manifestations of injury appearing. Diabetes insipidis was noted, consequent upon damage to the hypothalamus gland. Injury of that nature typically points to very severe brain injury. An MRI scan showed “very significant damage throughout the brain stem, particularly through parts of the brain stem involved with cardio-respiratory function” and involving the “whole right side of the brain” (T420:27-29). Neurosurgeon Dr James Dimou, whose evidence before the jury was compelling, described the brain injury as “extreme and extraordinarily severe” (T420:35). He deposed that the extent of damage to the brain was consistent with that more typically seen in a high velocity event such as a motor vehicle crash (T411:4-5).

27. Ultimately, active care was withdrawn and Ms Ninness died on 21 December 2013, in the arms of her sister and husband.

The Gravity of the Crime

54. The offence of manslaughter carries a maximum sentence of 25 years imprisonment. There is no standard non-parole period specified. The maximum penalty specified by s 24 of the Crimes Act 1900 (NSW) is both a guidepost to the Court and an indication of how seriously the community views the unlawful taking of a life.

55. It is because of the loss of human life inherent in the crime that the Parliament has seen fit to fix a maximum penalty of such length.

56. In determining the sentence to be imposed upon the offender, a vital part of that determination is an assessment of the objective gravity of the crime: R v Dodd (1991) 57 A Crim R 349. The sentence fixed must be proportionate to the gravity of the offence, and capable of adequately reflecting it, consistent with the principles of sentencing.

57. A number of features of this offence serve to mark it as a particularly egregious example of manslaughter.

1. It occurred in the context of a domestic relationship, in circumstances where Ms Ninness should have been able to rely upon the offender to, at least, do her no harm.

2. It occurred in circumstances where the offender had warning of the potential for him to physically hurt Ms Ninness. He had previously applied force to her and caused her some injury, including short loss of consciousness, and soft tissue injury to the lower back (Exhibit L). Having told one of Ms Ninness’s children on that occasion that he did not know his own strength, the offender must have been alive to his greater strength, and the potential for him to do injury to Ms Ninness.

3. Ms Ninness had herself warned the offender of the likelihood of him injuring her, cautioning him in a text message that he was “nuts”, and “will end up killing someone… probably me” (Exhibit AH, 40063). She had urged him to seek professional help, but he did not do so, saying in a text message that there was, in effect, no point (Exhibit AH, 38713).

4. Whilst the instigator and cause of the argument cannot be known, Ms Ninness chose not to follow the offender after he left the Tavern and not to continue the argument. When the offender sought her out, she told him to leave her alone and tried to walk away from him. The offender ignored her wishes and pursued her, continuing with the argument. His rising anger and agitation should have caused him to accede to Ms Ninness’s wishes, particularly having regard to the warning that the incident of 27 October 2013 should have provided to him. He did not.

5. Having pursued Ms Ninness to continue the argument, it was the offender who escalated it by resorting to violence, in an outburst of rage. Whilst there is evidence that both were waving their arms about during the verbal argument, I do not accept the evidence of the offender, unsupported by any other testimony, that Ms Ninness lunged at him, precipitating an instinctive response.

6. There was no provocation by Ms Ninness, and nothing that could have led to the offender’s act, other than his own state of rage.

7. The blow was struck by the offender in a vigorous movement of some force and directed to the head area, a particularly vulnerable part of the body, as the offender well knew from his naval training.

8. Although it is not possible to assess the precise level of force used by the offender in striking Ms Ninness, I accept the weight of the expert medical evidence (Dr Dimou and Dr Cala) that it must have been a blow of some force, delivered with some velocity. It is significant that Dr Dimou, who had the opportunity of seeing the injures to Ms Ninness prior to medical intervention, regarded it as an injury of such an extent as to be comparable to those seen more typically in passengers in car crashes.

9. Necessarily, having regard to the verdict of the jury, the act of the offender was one where a reasonable person in the offender’s position would have realised that the act exposed Ms Ninness to a risk of serious injury. I am satisfied that the offender also had this realisation having regard to:

1. The earlier incident of 27 October 2013 from which the offender was aware of his capacity to injure the much smaller Ms Ninness by the application of force to her; and

2. His military training which instructed personnel to avoid strikes to the head because of the inherent danger of blows to that area of the body.

10. The location of this attack was a public place, where others were exposed to this conduct, and witnessed all or part of it.

58. On all of the evidence I regard this as a very serious example of manslaughter, even having regard to the many and varied ways in which manslaughter may be committed, and the many and varied factual circumstances that may be encountered with such an offence.

The Victim Impact Statements

59. The Court has received and heard from David Blackie and Charnie Braz, Ms Ninness’s husband and sister respectively, who each gave a statement of the impact of the offender’s crime upon Ms Ninness’s family, read to the Court pursuant to s 30A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”). The statements were received by the Court pursuant to s 28(4) of the CSPA.

60. Section 28(4) provides for a victim impact statement to constitute evidence of harm to which a sentencing court may have regard.

61. The victim impact statements, so movingly delivered to the Court, provide direct and very personal evidence of the loss that the death of a member of the community in violent and unexpected circumstances causes, and the impact of that loss on those left behind. The Court heard eloquent expressions of the grief and pain left to Ms Ninness’s family and friends to endure, as a consequence of this crime.

62. Ms Ninness was a mother, wife, daughter, sister, and friend, and her violent death has forever changed the lives of those who loved her. Her loss has caused profound harm, particularly so to her three children, who, by the offender’s crime, have been deprived of their mother. This is a loss of unimaginable proportions.

63. The Crown submitted that the victim impact statements may be used in determining the punishment to be imposed upon the offender, as they demonstrate the harm done by him, a harm which is elevated by the loss to Ms Ninness’s children of their mother.

64. Ms Evers for the offender, whilst conceding that the loss to Ms Ninness’ family is considerable, submitted that the children are well supported, and their loss is mitigated to some degree by the family love with which they are surrounded.

65. Those competing submissions to some extent illustrate why courts sentencing offenders for an offence involving death have consistently refused to delineate the particular harm caused by an individual’s death. That exercise involves the Court in putting a value on the life of the individual. Here, the Crown argued that the harm caused by Ms Ninness’s death was elevated because she was a mother of three children; the offender’s representative sought to diminish the harm by arguing that the children had others to care for and support them. In my view, determining competing arguments of that nature is something that the courts should avoid.

66. I do not interpret s 28(4) of the CSPA to raise a basis for a sentencing court to find that the harm caused by a crime such as this is either aggravated or mitigated by the extent of the loss occasioned by the death of the victim. An assessment of that nature would involve the sentencing courts in an evaluation of the value of an individual life, measured by the pain and loss caused by the death. By that exercise, for example, the unlawful killing of a skilled doctor could be regarded more seriously than the unlawful killing of someone without those skills. That is an assessment no court should undertake in my view, because the gravity of the crime is the unlawful taking of a human life.

67. I do not understand the victim impact statements received by the Court to worsen the offender’s crime. The information provided by a victim impact statement is demonstrative of the harm that is inherent in an offence of manslaughter, and should be viewed consistent with the principles expressed in R v Previtera (1997) 94 A Crim R 76 which, in my view, remains good law.

68. The death of Ms Ninness at the offender’s hands has led to great harm and immense grief. That harm is part of the offence of manslaughter.

Other Evidence in the Crown Case

69. The offender’s criminal antecedents are relatively confined. He has convictions in Western Australia for a drink driving offence and one of disorderly behaviour in a public place, both from November 2008 and dealt with in April 2009, and driving offences from June 2009, dealt with in April 2010.

70. Except insofar as alcohol had a part to play in at least one of those offences, they are of no relevance to the present offending. They are not such as to deny the offender a measure of leniency that recognises the lack of serious offending in his past.

71. Since entering custody after the return of the jury’s verdict on 29 March 2016, the offender has not incurred any institutional conduct offences.

The Subjective Case

72. The offender’s case on sentence was very limited.

73. He gave evidence himself, although only to assert the truthfulness of the history he had given to a psychiatrist he consulted for the purpose of obtaining a report to be tendered on sentence.

74. Given the brevity of his evidence in chief, cross-examination was also very limited. Of some significance was the offender’s evidence during cross-examination that he maintains the version of events of 7 December 2013 that he gave in evidence at his trial. That is of some relevance to questions of remorse and rehabilitation and I will return to it.

75. The offender’s claims in that regard appear to be echoed in the report of Dr Michael Giuffrida, where it is noted that Ms Ninness was injured when she “fell onto the concrete pathway” (Giuffrida, p.2).

76. The offender is currently 32 years of age. He was 30 years old when he killed Ms Ninness.

77. In the history the offender gave to Dr Giuffrida he described a childhood spent in Perth, Ipswich in Queensland, Port Stephens, Richmond, and Raymond Terrace, with his family moving from time to time as a consequence of his mother and step-father’s military postings. His schooling was unremarkable, although the offender reported truanting regularly.

78. The offender’s mother and step-father remain supportive, and he has on-going contact with his siblings. The offender has renewed contact with his father, who has visited him in prison.

79. At age 17 the offender left home to join the Royal Australian Navy, in the service of which he spent the next 7 or 8 years. The offender was posted overseas and spent time on active service in the Middle East, including involvement in boarding boats suspected of hostile intent. He told Dr Giuffrida that he had a leadership role, and was deployed in dangerous and challenging missions.

80. That is broadly consistent with evidence from Lieutenant Commander Santos, to the effect that the offender had joined the Navy on 11 September 2000, being discharged in July 2008.

81. The offender assured Dr Giuffrida that he chose to leave the Navy, perhaps feeling a degree of disenchantment with the military (Giuffrida, p.10).

82. Rather in contrast to the offender’s immediate assertions to persons at the scene on 7 December 2013 that his military service had adversely affected him, and was in some way responsible for what had occurred (a claim I have rejected), the offender did not initially express any concerns to Dr Giuffrida about the consequences to him of deployment in potentially dangerous situations during overseas service. He similarly reported having no more than a “fifteen minute chat” with a Navy psychologist following active service, with assurances that he was “fine” (Giuffrida, p.6).

83. Dr Giuffrida has concluded nevertheless that the offender has experienced a number of symptoms consistent with post-traumatic stress disorder, such as sleeplessness, anxiety, and nightmares. There is nothing in the doctor’s report to causally link these symptoms or a post-traumatic stress disorder to the events of 7 December 2013.

84. The offender gave Dr Giuffrida a history of two prior significant relationships, both of which ended, he said, because of the jealousy of his partners. The offender has a 14 year old child from his first relationship, but he has no contact at all with the child. A relationship formed after Ms Ninness was killed, and when the offender was at liberty subject to bail, has resulted in the impending birth of a second child.

85. The offender’s relationship with Ms Ninness was his third of significance, and jealousy figured here too, although in Dr Giuffrida’s opinion the problematic jealousy on this occasion was the offender’s. The doctor described the offender’s jealousy of Ms Ninness as “free floating [...] independent of facts” (Giufrida, p.8). Certainly the evidence of the text messages exchanged between the offender and Ms Ninness suggests that his jealousy contributed to what he told Dr Giuffrida were arguments “like nothing on earth” (Giuffrida, p.8).

86. The offender also gave Dr Giuffrida an account of drug and alcohol use such as to lead the doctor to opine that he has a Substance or Stimulant Use Disorder to a severe degree, and an Alcohol Use Disorder. The offender described daily use of stimulants, mainly cocaine, with an addiction to cocaine commencing in 2011 or 2012, and a habit of use of one gram or more each day. Dr Giuffrida categorised the offender’s addiction as “extremely serious” (Giuffrida, p.9). The offender has also used ecstasy and amphetamine on occasion, and referred to his last use of an illegal drug as occurring in 2015.

87. The offender also has a problem with alcohol abuse, describing to Dr Giuffrida binge drinking vast quantities of beer with the object of getting drunk. In a state of drunkenness the offender has confessed to getting into fights with men, something that has also happened on the football field.

88. Whilst finding the offender an “unusual and contradictory character” (Giuffrida, p.11), with aspects of his past such as events leading to childhood consultations with a psychiatrist, unknowable, Dr Giuffrida has concluded that the offender has an underlying depressive mood state, and displays symptoms consistent with post-traumatic stress disorder. He refers to the offender’s jealousy as taking on a life of its own, although without becoming pathological or delusional. He suggests that “it may be the case” that his symptomology made him more vulnerable to jealous feelings (Giuffrida p.12).

89. Dr Giuffrida is of the view that the offender would benefit from ongoing treatment to address substance abuse, and psychotherapy directed to symptoms of post-traumatic stress disorder. He refers to the need for dual action anti-depressants, medication available to the offender currently.

90. A number of character references were tendered for the offender, although none of the authors other than Shanae Fletcher gave evidence before the Court or was cross-examined. Ms Fletcher, a cousin of the offender, was called to give evidence supportive of a submission from counsel for the offender that the offender had been subjected to what was referred to as extra-curial punishment, but she was not in the event able to testify to anything of that nature, and the submission was abandoned.

72. The character referees – family members, friends from sport or the gymnasium, a former colleague, and the offender’s current partner - all speak highly of the offender. He is described as a responsible and hard-working man with high standards of personal conduct who is unfailingly courteous, generous, and loyal. His involvement in sport is praised, as is his willingness to coach younger players, and help others in need beyond the sports field. Those who wrote references expressed their surprise at the offender’s current situation, and some specifically referred to the events of 7 December 2013 as being out of character.

73. That evidence, whilst clearly heartfelt, must be viewed through the prism of objective fact. For example, although the offender’s mother referred to her son as “at all times strictly adhering to the conditions of his bail” (Exhibit 7, p.3), that must be contrasted with the offender’s admissions to Dr Giuffrida to having used prohibited drugs into 2015, something contrary to both his conditions of bail, and the criminal law. The testaments to his gentle and trustworthy nature need to be considered in light of his heavy and longstanding cocaine and other drug use, and his occasional involvement in fistfights when drinking or on the football field, together with the viciousness of the abuse frequently levelled at Ms Ninness by the offender during the course of their brief relationship.

74. The referees also refer to the grief and sadness the offender has expressed over Ms Ninness’ death. That is consistent with the distress seen by witnesses who had occasion to observe him on the night of 7 December 2013 and into the following morning, and I do not doubt the magnitude of his grief. Grief, however, must be distinguished from remorse. It is possible to feel bereft at the death of a loved one without feeling the weight of responsibility for that death.

75. In light of the offender’s evidence at trial of the circumstances of Ms Ninness’ death, and his insistence in evidence on 9 May 2016 that his account was correct, I am not able to conclude that the offender is remorseful for his crime as contemplated by s 21A of the CSPA. Before the jury the offender repeatedly sought to diminish his conduct. He claimed that he had not been angry with Ms Ninness on 7 December 2016 but only annoyed, that his abuse of and threats towards her at times in their relationship were merely childish, that his previous assault of her was “just an accident” (T729:05). I accept that he feels sorry that Ms Ninness died, and feels sadness for her children, but I do not accept that he is remorseful for his conduct, or feels personally responsible for her death.

76. The lack of remorse has some limited impact upon his prospects of rehabilitation.

77. What can be taken from the references tendered on the offender’s behalf is his history of hard work and loyal friendship, his pride in his valuable military service to his country, and the devotion of his friends and family to him.

Sentencing – Manslaughter Offences

97. Sentencing principles that apply in a case such as the present are well-established.

98. It has long been recognised that of all serious offences, manslaughter attracts the widest range of possible sentences: R v Lavender [2005] HCA 37; (2005) 222 CLR 67 at [22] per Gleeson CJ, McHugh, Gummow and Hayne JJ. As was there stated, the culpability of a person convicted of manslaughter may fall just short of that of a person guilty of murder, or it may be such that a nominal penalty would suffice.

99. As has frequently been recognised, the fundamental touchstone for sentencing in cases of manslaughter is that there has been an unlawful taking of human life for which the offender has been found criminally liable and for which he must be sentenced: R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep).

100. Section 3A of the CSPA sets out the purposes of sentencing, purposes the court must endeavour to achieve when determining the sentence to be passed upon an offender. Punishment, retribution, and deterrence all have a role to play, as well as denunciation of the offence, and the need for the offender’s rehabilitation. Particular regard must be given to the features relevant to the objective seriousness of the offence as well as to any mitigating circumstances.

101. The maximum sentence provided by statute provides a guidepost to the Court.

102. Some attention may be given to decided authorities, although the assistance to be found there must be acknowledged to be limited. The parties have referred the Court to a number of earlier decisions, including R v Bryce (No 5) [2014] NSWSC 1184; Field v R [2015] NSWCCA 332; and R v Loveridge [2014] NSWCCA 120. Annexed as Annexure A to the published account of this judgment will be a table (“the Table”) of earlier cases where sentence has been imposed for manslaughter. As the cases the parties have cited, and the Table, demonstrates, sentences for manslaughter vary greatly. Earlier decisions of the courts can inform the exercise of the sentencing discretion, but no more.

103. No case is precisely like this one. No case exactly reflects the circumstances, objective and subjective, of this matter. No earlier sentence can dictate or even suggest the sentence to be imposed upon the offender for the crime he committed.

Other matters relevant to the assessment of sentence

104. A number of other features remain to be considered.

The Offer of the Plea of Guilty

105. When arraigned before the jury panel on 1 March 2016 the offender entered a plea of not guilty to the charge on indictment of murder. He did not enter a plea of guilty to the alternative of manslaughter, although it was open to him to do so.

106. During the course of the trial and after evidence was adduced without challenge that readily established the alternative, I raised the absence of challenge to the evidence, and the issue of the plea, with the offender’s counsel (T282-283). The relevant witnesses were recalled for cross-examination on the offender’s application and their evidence challenged, but no plea was entered to the alternative offence.

107. Despite that factual history, the offender contends that he should be given a discount on sentence to reflect his offer, made some weeks prior to the commencement of his trial, to plead guilty to manslaughter. Whilst it is conceded that the plea offer was not made at an early stage, and there is thus no argument seeking a discount of 25% on the sentence that would otherwise be imposed, the offender submits that the discount awarded to him should be material. Reliance is placed upon R v Cardoso (2003) 137 A Crim R 535 and R v Oinonen [1999] NSWCCA 310.

108. The Crown tendered email correspondence between it and counsel for the offender of 2 February 2016 in which it was confirmed that the offender “has instructed us to offer to plead to manslaughter, subject to agreed facts” (Sentence Exhibit A).

109. The Crown referred the Court to the same decisions of Oinonen and Cardosa, and also to Morton v R [2014] NSWCCA 8; R v AB [2011] NSWCCA 229; Villalon v R [2015] NSWCCA 229; R v Borkowski [2009] NSWCCA 102; (2009) 52 MVR 528; and R v Johnson [2003] NSWCCA 129.

110. It is clear from the email exchange that the offer of a plea of guilty was a conditional one, made subject to some agreement being reached as to the factual basis of a plea to manslaughter. The offender has not placed any evidence before the Court as to the nature of the facts he would have regarded as acceptable prior to entering any plea. His counsel asserts in submission that he was not given an opportunity to negotiate facts because the Crown rejected the plea offer out of hand.

111. It is undoubtedly the case that an offender who is convicted at trial may still be given a sentence appropriately reduced to reflect the utilitarian benefit of an offered plea, where there is a utilitarian benefit to reflect. The offender contends that there was utilitarian value in the offer he made.

112. Section 22 of the CSPA requires the Court to have regard to the entry of a plea of guilty in determining the sentence to be imposed upon an offender. There was no plea in this case to give rise to s 22 considerations.

113. The principles enunciated in R v Thompson; R v Houlton [2000] NSWCCA 309; (2002) 49 NSWLR 383 emphasise that the basis of a discount on sentence is the extent of the utilitarian value of the plea. The question to be determined is the extent to which the offender’s conditional offer advantaged the administration of justice. Borkowski at [32], endorsed in R v AB and many decisions since, has set out the considerations relevant to answer that question, and I have had regard to them.

114. The offender’s case at trial was that he was not guilty of both murder and manslaughter, and that he should be acquitted of both charges. He advanced a positive defence asserting on his oath that no act of his made him criminally liable for Ms Ninness’ death. He asserted that Ms Ninness’ hand came up towards him and he put his arm across his face, essentially in a protective gesture. He said he felt some contact, and then saw Ms Ninness fall to the ground. What he described was neither unlawful nor dangerous.

115. Evidence was adduced by the offender as to the height of the shoes worn by Ms Ninness, and her asserted state of intoxication, and it was suggested that she may, in effect, have tripped or fallen from her shoes and hit her head, whilst waving her arms at the offender during an animated exchange.

116. Questions asked of the medical experts were based upon a premise that there had been no blow of any force struck by the offender, evidenced by the absence of any injury, it was asserted, to Ms Ninness’ head or face that could be attributed to such a blow. The medical evidence called in the Crown case was put to significant challenge, as was the evidence of any witness which contradicted the offender’s case of accident.

117. The conclusion urged upon the jury was that the fatal injuries received by Ms Ninness were caused by the collision with the carpark surface, and were not occasioned by any act of the offender. His conduct was likened by his counsel in argument before the Court to the sort of motion one makes when moving an irritating insect away from one’s face, a motion which was neither unlawful nor dangerous.

118. Having reviewed the evidence given on his oath by the offender, and accepting that the offender’s legal representatives could not, consistent with their obligations as officers of the Court, have called a positive case on his behalf if his sworn testimony significantly differed from his instructions as to the events of 7 December 2013, I cannot regard his conditional offer of a plea as any more than exploratory.

119. I infer that no facts that would have supported a plea of guilty could have been acceptable to the offender having regard to his sworn evidence. Nothing in his conduct of his case was consistent with his guilt of manslaughter, and I am not able to discern any utilitarian benefit in the conduct of the trial overall.

120. A trial fixed to continue for four weeks prior to any issue of a plea being raised in fact continued for four weeks. The offender made no concessions in evidence or in the cross-examination of witnesses which could justify a discount for a utilitarian benefit attaching to his conditional offer of a plea to the alternative count.

121. I would respectfully adopt what was said by the Chief Judge at Common Law in Morton v R, at [32]:

“…There is no utility in a plea of guilty that has not been forthcoming. If the accused is not prepared to plead guilty until the Crown takes some course, then so be it.”

The Issue of Special Circumstances

122. The offender submits that he should be given the benefit of a finding of special circumstances, and the non-parole period to be imposed upon him should be consequentially reduced: s 44(2) CSPA. Reliance is placed upon the conclusions of Dr Giuffrida that he has an alcohol abuse disorder and symptoms of post-traumatic stress disorder to justify such a finding.

123. There is authority to the effect that a psychiatric or psychological disorder may ground a finding of special circumstances, but the existence of such a disorder does not mandate that finding.

124. It is important to bear in mind the purpose and rationale for a finding of special circumstances. The finding is not made simply as a means by which to shorten the non-parole period to be imposed; it is made because there is some legitimate need for a longer period of parole. Special circumstances, as the wording of the legislation, supported by authority (R v Fidow [2004] NSWCCA 172, at [20]) makes clear, must be “special”.

125. I accept that the offender has need for ongoing treatment for his depressive condition and other symptoms, and that he would benefit from assistance with alcohol rehabilitation (he appears to have dealt with his drug addiction given his assertion to Dr Giuffrida that he had not used illicit drugs since 2015, although I am mindful of the diagnosis). This does not automatically entitle him to a reduction in the non-parole period to be imposed.

126. There is no evidence that the identified disorders will make the offender’s experience of a custodial environment more oppressive than for prisoners without his conditions, such that special circumstances should be found on that basis.

127. By operation of the ordinary statutory ratio of sentence the offender will have the benefit of eligibility for release to a period of parole of some length, no doubt with supervision from the parole authorities. The parole period available as a statutory percentage will provide a reasonable period of supervision and support to the offender to engage with rehabilitative facilities, should such facilities continue to be necessary at the expiration of the non-parole period.

128. Upon release, the offender will also have the benefit of a loving and supportive family network to assist him to reintegrate into the community. There is no reason to conclude other than that he will have the advantage of accommodation with family to assist him when he is released. He has an excellent work history and strong work skills, and that background will also stand him in good stead to resume a law abiding and productive life in the community. Broadly speaking, the offender’s prospects for rehabilitation appear positive.

129. I am not satisfied that more is needed by way of supervised release than is provided for by statute, and I decline to find that special circumstances exist such as to warrant a reduction in the non-parole period.

Deterrence

130. Principles of specific and general deterrence both have a role to play in determining the sentence to be imposed upon the offender.

131. Whilst the offender’s prospects of rehabilitation are positive, there remains a need to deter him from the prospect of relapse into dealing violently with a partner who displeases him.

132. Of perhaps even greater significance is the need for the sentence imposed upon the offender today to act as a deterrent to others from visiting unlawful physical violence on others. The sort of offence of which the offender has been convicted occurs with distressing frequency in the community. Frequently men – and it is most commonly young men – become angry and think it acceptable to express that anger physically. The consequences, as here, are catastrophic.

133. There have recently been a number of instances of such violence before the courts where a life is lost because of an individual’s enraged outburst, and general deterrence must be given significant weight, as a means of protecting the community from further such instances: Hopley v R [2008] NSWCCA 105; R v Carroll; Carroll v R [2010] NSWCCA 55; 77 NSWLR 45; R v Loveridge [2014] NSWCCA 120.

134. There is also a need to send a very strong message to those in the community, again most typically men, and not excepting the offender, that violence is never an acceptable means of resolving disputes and difficulties in the context of a personal relationship, and the courts will vindicate those harmed by domestic violence.

135. I cannot express the principle better than did the majority of the High Court in Ernest Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600, at [55], where French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ said:

“A consideration with a very powerful claim on the sentencing discretion in this case is the need to recognise that the appellant, by his violent conduct, took a human life, and, indeed, the life of his de facto spouse. A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol‑fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.”

136. A conviction having been recorded against you on 9 May 2016 for the manslaughter of Marika Ninness, you are sentenced to a term of imprisonment comprising a non-parole period of 8 years and 3 months, to date from 22 March 2016, and expiring on 21 June 2024, with a balance of term of 2 years and 9 months imprisonment, expiring on 21 March 2027. The total term of imprisonment is one of 11 years.

137. You are advised that the offence of manslaughter is a “serious violent offence” as defined by s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW). Section 25C of that Act requires the Court to advise you of the existence of the legislation, and of its application to the offence of manslaughter of which you have been convicted.

138. I direct that a copy of the report of Dr Michael Giuffrida dated 16 April 2016 be placed with the warrant of commitment for transmission to the Corrective Services authorities.

**********

annexure a

Case	Catchwords	Plea	Sentence	Facts
R v Stephenson [2007] NSWCA 672	CRIMINAL LAW - Sentence – Manslaughter – domestic context – no history of violence – offender affected by drugs and alcohol	Guilty to manslaughter	Guilty of manslaughter: 6 years, NPP 3.5 years NB: Sentence appeal rejected (Stephenson v R [2008] NSWCCA 266).	• Relationship described as volatile – constant accusations of infidelity • Verbal argument between offender and deceased (deceased accusing him of having an affair) • Offender and deceased consumed alcohol and drugs • Offender punched victim several times to the head with a closed fist • Victim lost consciousness • Offender performed CPR, dialled 000 - described as deeply remorseful • Cause of death: Traumatic basal subarachnoid haemorrhage Other facts relevant to sentence: • No prior violence in relationship • Minor criminal record, drugs. No prior violence • Offender described as having substance abuse • Satisfactory upbringing and stable family life
R v Daniels [2004] NSWSC 1201	CRIMINAL LAW – Sentence – manslaughter – alternative verdict after trial – spontaneous killing of partner in domestic dispute	Not guilty	Guilty of manslaughter: 8 years, NPP 5 years	• Verbal argument about unfaithfulness • Propelled the deceased’s head against a wall • Deceased suffered a serious brain injury and later died in hospital Other facts relevant to sentence: • Offender had been drinking – unsure to what extent • Aggravated: tried to involve their children – told the deceased after he had attacked her, “go in and show the kids your face” • Unrelated criminal history
R v McNeil (No 4) [2015] NSWSC 1198	CRIMINAL LAW – sentence – manslaughter by unlawful and dangerous act – plea of guilty not accepted by Crown – convicted of manslaughter following trial for murder – unprovoked attack – offender intoxicated – single punch – victim fell straight back onto road	Guilty to manslaughter – Not guilty to murder Guilty to assault occasioning ABH Guilty to assault	Guilty of manslaughter, assault occasioning ABH and assault – aggregate sentence: 10 years, NPP 7 years and 6 months Manslaughter in isolation – sentenced to 9 years	• Offender got in a fight at Kings Cross over derogatory remarks made about his girlfriend. Offender got punched twice in altercation, offender struck JF with a blow and a kick (assault) • Offender approached the deceased under the mistaken belief they were part of a group of young men the offender had been fighting with earlier in the evening • Deceased offered no threat • Offender delivered a single punch to the face of the deceased causing him to fall backwards and hit his head on the road. 11 days later, life support was turned off (manslaughter) • On the same night, offender also punched the brother of the deceased, Peter Christie (assault occasioning ABH) Other facts relevant to sentence: • Offender had a “mind addled by alcohol” when he punched the deceased • Immediate acceptance of wrongdoing and expressed genuine remorse • History of drug and alcohol abuse • Criminal history – including offences of violence • Offender “powerfully built man” – trained in UFC fighting. “Daniel Christie was no match for him” (at [30]) • Cannot conclude prospects of rehabilitation are good “but they are reasonable.”
R v Zammit[2008] NSWSC 317	CRIMINAL LAW – sentencing – domestic violence - manslaughter	Guilty (plea accepted)	Guilty of manslaughter: 6 years, 3 months – NPP 4 years	• Offender and deceased were in de facto relationship since 2002 • The offender, deceased and offender’s former partner, Ms Jennings, drank together • Offender accused deceased of sleeping with other men and using heroin. Deceased admitted the truth of accusations • Ms Jennings asked deceased if the accused hit her on occasions and deceased said that he did. Offender became upset about this conversation and began swearing at the deceased because of what she said to Ms Jennings about him assaulting her • Offender grabbed deceased and threw her into the refrigerator (assault 1). Deceased fell into a bench top hitting her ribs. She then fell to the floor where she lay gasping and trying to catch her breath. She lay in bed moaning and groaning but soon fell asleep • The next morning, deceased continued to berate deceased. He threw her forcefully into a cupboard (assault 2). Deceased fell to the floor then managed to clamber on to a chair. Deceased said she was fine • Condition deteriorated throughout the day. Deceased did not want ambulance called • Deceased condition deteriorated further - had trouble breathing • Offender went to get help from a neighbour. Neighbour saw deceased was a purple colour and directed the offender to call the ambulance • She died on the scene Other facts relevant to sentence: • Lack of remorse noted - offender declined to go to the hospital. Refused to attend hospital later when requested to do so • Didn’t take responsibility initially - Offender told neighbour she probably killed herself and later told police, she choked on a sandwich. Offender later confessed • Intoxicated when committed both acts of violence • Less serious nature of assaults – assaults were pushes rather than kicks, punches or use of a weapon (at [21]) • Despite 2 assaults, nothing to suggest this was an incident occurring in an abusive relationship • Extensive criminal history – including violence • Alcohol and drug addiction • Exposed to family violence from a young age – father against mother and father against offender • Special circumstances – deteriorating medical condition of offender (liver disease) – may have exacerbated effects of alcohol
R v O’Hare [2003] NSWSC 652	N/A	Guilty to manslaughter (plea accepted)	Guilty of manslaughter: 6 years - NPP 3.5 years	• Broke up with girlfriend which left offender in angry and agitated state • Some words exchanged between Mr Marks and the offender. No provocative action on part of deceased, although offender “formed the view he was going to be struck from behind” (at [10]) • Offender swung a full bodied punch at Mr Marks’ head. It connected with the left side of his face • Mr Marks rendered immediately unconscious and fell back and “cracked the back of his head on the footpath as his body hit the ground” (at [2]) • Offender left the scene but was arrested by police shortly after • Mr Marks sustained fractured skull and died 6 days later Other facts relevant to sentence: • Been drinking alcohol at time of assault • 23 years old • Endured physical and verbal abuse by his step-father • Commenced drug use after incident – since in methadone program but “offender is not yet successfully addressing his drug problem” (at [20]) • Offender expressed considerable remorse • Prior good character – minor summary offences • Deceased was an elderly man “struck forcefully by a young physically vigorous person” (at [35])
R v Risteski[1999] NSWSC 1248	CRIMINAL LAW – sentencing – manslaughter – unlawful and dangerous act – punch thrown in brawl	Guilty to manslaughter	Guilty of manslaughter: 5.5 years - NPP 3 years	• Involved in a group brawl at a casino in Sydney with English tourists • There were some verbal exchanges, a glass was thrown by the area occupied by the English tourists, a physical confrontation ensued. Blows were exchanged • The offender struck the victim with a “very heavy punch to the side of his neck near his left ear” (at [4]). As the victim was falling, the offender threw another punch. The offender then kicked at the head area of the victim while he was in an unconscious state

Decision last updated: 24 May 2016