R v O'Connor
[2018] VSC 516
•4 September 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0221
| THE QUEEN |
| v |
| GARY SEAN O’CONNOR |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 June 2018 |
DATE OF SENTENCE: | 4 September 2018 |
CASE MAY BE CITED AS: | R v O’Connor |
MEDIUM NEUTRAL CITATION: | [2018] VSC 516 |
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CRIMINAL LAW – Sentence – Manslaughter by an unlawful and dangerous act – Mid-range seriousness of offending – Stabbed victim with sharpened screwdriver multiple times – Dynamic physical fight – Moral culpability – Plea of guilty – Prior history of violence –Weight to general deterrence, denunciation, specific deterrence and community protection – Gap between head sentence and non-parole period – Sentence of ten years’ imprisonment with non-parole period of seven years – But for plea of guilty, sentence of twelve years’ imprisonment with non-parole period of nine years – Sentencing Act1991 – Crimes Act1958.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Gibson Ms C Parkes | Office of Public Prosecutions |
| For the Accused | Mr T Marsh | Victoria Legal Aid |
HIS HONOUR:
Introduction
Gary Sean O’Connor, on 6 April 2018, you pleaded guilty to the manslaughter of Michael Barnicoat on 1 and 2 November 2016. You pleaded guilty on the basis of manslaughter by an unlawful and dangerous act, in that you stabbed Mr Barnicoat a number of times with a sharpened screwdriver.
The maximum penalty for manslaughter is 20 years’ imprisonment.
Circumstances of the offending
You and Mr Barnicoat lived at a shared accommodation house in Peter Street, Springvale. He was aged 47 when he died and had moved into the premises on or about 9 September 2016. You were aged 53 and at that time, were the longest resident at the premises. There were a number of other boarders staying at the house, all of whom were male. Some of them were witnesses to the events that occurred.
Around 20 October 2016, you told the owner of the house that you were intending to vacate. You were dissatisfied about the number of boarders at the premises, the noise levels, and one of the other residents.
At about 8.00pm on 1 November 2016, you and Mr Barnicoat were heard yelling and swearing at each other. This continued on and off for a couple of hours. You appeared to be intoxicated at this time.
Sometime near midnight, Mr Barnicoat came to the door of your room. He was yelling at you loudly and banging on the door from the hallway, behaving in an annoying and belligerent manner. You became angry with him for the disturbance and his behaviour towards you. You also had some lingering resentment towards him for failing to repay a $50 debt for a loan you had given him previously.
You opened the door of your room and immediately punched Mr Barnicoat in the face with your right fist. As a result, he fell backwards and hit the plaster wall with such force that it was damaged. The punch caused a laceration to the inside and outside of his lip, and loosened one of his teeth. The punch also caused a large laceration to the knuckles of your right hand.
You and Mr Barnicoat then fought in the hallway. During the altercation, you had possession of a sharpened screwdriver and stabbed Mr Barnicoat a number of times. Two of those stab wounds were fatal. The prosecution allege that when you stabbed Mr Barnicoat you intended to cause him a serious injury, rather than a really serious injury. It is your acts of stabbing him fatally that amount to the offence of manslaughter.
Mr Barnicoat did not die immediately and was able to return to his bedroom. You also returned to your bedroom and called the owner of the premises. You told him that Mr Barnicoat had come home drunk and needed an ambulance. During that conversation, you mentioned that Mr Barnicoat had a puncture wound but did not say how it was caused. You did not mention that Mr Barnicoat had been stabbed or the fight that occurred between the two of you.
Mr Barnicoat had been assisted into his bedroom by another resident, who called 000 and asked for an ambulance. Shortly after, Mr Barnicoat lost consciousness and died in his bedroom, with efforts by another resident to resuscitate him proving unsuccessful.
At about 12.30am on 2 November 2016, police attended the house. Members of the police took over resuscitation and began to investigate what had happened. You told a police officer that you had heard yelling and banging coming from the hallway outside your bedroom, and saw two unknown men assaulting one of your housemates. You said you began to punch these unknown men so as to protect your housemate and that they then ran from the premises. You told police that your housemate had blood on his shirt and that you had called out to other residents to call an ambulance. You said that your injured housemate walked back to his bedroom and attempted to go to sleep.
Based on the police observations and further information obtained from witnesses, you were arrested and cautioned.
The prosecution case is that you gave materially false information to police in an attempt to distance yourself from responsibility for Mr Barnicoat’s injuries.
You were conveyed to the Dandenong Police Station, where you were examined by a doctor. You had several blunt force trauma injuries to your head, hands, wrist and elbow. You also had lacerations, swelling, pain and loss of function to your right hand.
You were later taken to the Dandenong Hospital for treatment. On the way to the hospital, you told police that Mr Barnicoat had been yelling out names at you, such as ‘rat’, ‘dog’, ‘cunt’, and as a result of that behaviour, you opened your door. You said you saw a ‘glint’ of something, which caused you to punch Mr Barnicoat, which forced him into the plaster wall behind him. You said that your punch caused Mr Barnicoat to either drop what he was holding, or, that you ‘took the thing off him’, ‘whatever he had in his hand’. You said you grabbed that thing, and that you both wrestled and ended up on the floor. You admitted stabbing Mr Barnicoat whilst in that position, but you did not know how many times, saying ‘once or twice’.
Later on 2 November 2016, you returned to the Dandenong Police Station where you were interviewed by police. During the interview, you said that Mr Barnicoat was drunk and had started bashing your bedroom door while threatening to kill and bash you. You repeated a description of events very similar to those recounted earlier on the way to the hospital. You told police that you stabbed Mr Barnicoat two or three times, ‘as far as I know, I only stuck it into him twice, into the front of his body’. You admitted that the laceration on your right hand had been caused by punching Mr Barnicoat. You told police that you did not know what became of the object used to stab Mr Barnicoat.
The police investigation
Crime scene investigators examined the premises and found there was no damage to either your bedroom door, or its locking mechanism. Police found a black-handled flathead screwdriver with a sharpened tip in your bedroom wardrobe. The screwdriver was forensically examined and subjected to DNA testing. DNA investigation determined that there was blood present on the tip of the screwdriver, but a DNA profile was unable to be obtained in respect of that blood. The testing found that you were not excluded from being a contributor of the DNA found on the handle of the screwdriver. It appears you lied to police about not knowing what had happened to the weapon you had used to stab your victim.
Post mortem investigation
The examination of Mr Barnicoat’s body revealed he died as a result of stab wounds to his chest and abdomen. He had stab wounds to the left side of his head, the left side of his chest and his left lung, as well as an incised injury to the left ventricle of his heart. The pathologist noted that the incised stab wounds varied in their length of wound track from a few millimetres to several centimetres, with the deeper wounds being associated with organ injuries to the left lung, heart and liver.
One of the two major stab injuries was in the medial wall of the left armpit and went on to penetrate the chest and injure the underlying lung. The second penetrated the chest, injuring the lung and passing through a rib and damaging the surface of the heart, causing bleeding. It was these two wounds that caused the greatest loss of blood, and therefore caused the death of Mr Barnicoat.
A third wound of significance entered the abdominal cavity and passed through the left lobe of the deceased’s liver.
In addition to these three injuries, there were a dozen or so other wounds. At the committal, the forensic pathologist was asked whether the totality of the wounds were reflective of a sustained frenzied attack on Mr Barnicoat, or the effects of a concerted struggle or fight between two men. The forensic pathologist said that the penetration wounds varied in depth and that there was a greater predominance around the left pectoral area and the left nipple area. The pathologist was unable to be more specific than classifying the injuries as a ‘range of injuries over the surface of the body, many of which are indeed superficial’. The pathologist agreed that the wide distribution of injuries over the arms, in the head and the chest were more likely to occur when there was a complex set of interactions.
Procedural history
You were arrested on 2 November 2016 for the murder of Mr Barnicoat. The committal hearing took place on 14 and 21 September 2017. On 21 December 2017, you offered to plead guilty to a charge of manslaughter by an unlawful and dangerous act. Following a case conference on 27 February 2018, the prosecution accepted your plea.
You were arraigned and pleaded guilty to the charge of manslaughter on 6 April 2018. You have been in custody since your arrest.
Seriousness of the offending
At face value, the discovery of the screwdriver in your room after the events tends to establish that the weapon belonged to you, and that you had it from the start to the end of the events. You told the police that this was not the case, and that you had seen ‘glint’ of something when you opened the door.
In determining this aspect of the case I have been troubled by the fact of your prior conviction for a serious assault, where you used a screwdriver to stab another person. Despite this fact, given the state of the evidence and the submissions made by both parties, I am unable to safely conclude that you possessed the screwdriver at the beginning of events.
This is not the end of my assessment about the seriousness of your conduct. At some point you were in possession of the screwdriver and used it to stab your unarmed victim multiple times to his head and upper body, penetrating major organs. Using the sharpened screwdriver in this way constituted a very serious assault by you on Mr Barnicoat which resulted in his death.
With respect to the effects of alcohol and drugs, the prosecution pointed to evidence that you disavowed the use of any substances on the day, and that you had not been under the influence of drugs or alcohol at the time of the events. The prosecution argued that there is no independent evidence from attending police or co-residents that supported the fact you were affected. On the other hand, you reported to your examining psychiatrist that you had purchased some substances during the course of that day.
It was not advanced on your behalf that you were acutely intoxicated by drugs at the time of your offending. It was suggested that your offending should rather be assessed as occurring in the broader context of being a habitual drug user, and having taken some substances on the day of the events. There is little to suggest that when you stabbed your victim you were acting directly under the influence of drugs or alcohol taken on the day.
Ultimately, I do not regard the situation with respect to your substance abuse as aggravating the seriousness of your offending, but neither do I conclude that it is a factor that diminishes the degree of seriousness.
I assess the objective gravity of your offending as within the mid-range for this type of offending. I cannot conclude your assault on Mr Barnicoat was premeditated, and I accept that the events occurred in the course of a dynamic and fast moving set of circumstances.
Victim Impact Statements
I was provided with Victim Impact Statements from Mr Barnicoat’s mother, Bridget Barnicoat; his father, Trevor Barnicoat; and his older sister, Helen Barnicoat. Each of the Victim Impact Statements spoke of the grief experienced as a result of the death of their son and brother.
Bridget Barnicoat described how much she misses her son, the times when he would visit her and her husband, and the loss felt by the family as a result of his death. She spoke of the pain and trauma experienced by her and her family, and how the way in which he died lives with her every day.
Trevor Barnicoat described how the death of his son has shattered the foundation of their family. In a charitable comment, he expressed the hope that the man who caused their son’s death never has to suffer as his family has suffered. He spoke of the happy times that the family had spent with their son and the things that his son loved doing when he was growing up and when he had become an older man. His son loved his family and he loved animals.
Helen Barnicoat spoke of the closeness that she had to her brother when they were growing up and of the shock and tears that she experienced when told her brother had died. She spoke of her sense of loss at never again being able to hear him play his guitar, hear him sing, and use his sketchpad. She made special note of her grief that there is an empty seat at the Christmas table where her brother would sit, and how the family has been fractured. She regretted that she never had the opportunity to say goodbye to her little brother.
I have taken these Victim Impact Statements into account in making an assessment of the sentence that will be passed upon you.
Personal circumstances
You are currently 55 years old. You were born in Belfast and migrated to Australia when you were nine years old. Your mother is now 79 and your father passed away about 12 years ago. You have one older brother aged 57, and a younger sister who is 50. Regrettably, you do not have contact with either of your siblings. I am told that you have had very limited contact with your mother over the last two years. Since these events occurred, you have been too ashamed to make contact with her. Your mother has now returned to Australia from living in England and has made contact with you in an attempt to reconnect.
You were educated at the Dandenong Technical School. You were asked to leave in Year 9 at the age of 14. You were a below average student and experienced bullying and physical abuse at school. At the age of 17, your mother took you and your sister back to England in order to remove you from the drug scene in which you had become embroiled since the age of 14. This disengagement only lasted six months and you later returned to Australia, where you resumed labouring work. Again, your employment efforts were hampered by ongoing drug addiction.
For a number of years you moved between your parents’ homes, as well as the homes of friends and acquaintances, while your abuse of drugs and alcohol increased. Over the years you have undertaken a number of labouring jobs, including bricklaying, farm work, plastering and demolition work. Your employment has been sporadic due to your ongoing drug use and inability to commit to long-term employment. You have travelled around Queensland and Tasmania pursuing work in the fishing industry.
In 2000 to 2001, when you were 38 years of age, you suffered debilitating nerve palsy as a result of numerous drug overdoses. Around this time you ceased gainful employment and thereafter were placed on a disability support person. In 2002, your father was found drowned in the Yarra River and it was suspected he had committed suicide whilst intoxicated. This event was a further catalyst for the increased drug and alcohol abuse that followed. At about years 46 years old you were diagnosed with prostate cancer and underwent a radical prostatectomy in 2011.
A combination of your physical ailments and advancing years has left you with a self-perception of vulnerability and weakness. It was submitted that your response to the circumstances that led to the death of Mr Barnicoat should be assessed in this context.
You have struggled to maintain long-lasting relationships as a result of your drug use, with your longest relationship lasting about five years when you were in your twenties. The relationship produced a male child who was stillborn. You later married another woman to whom you remain married, although you have lost contact. You entered another relationship around 2002 or 2003 while living in Cairns. That relationship produced twin boys who are now aged 26. You have had no contact with your children for about two years.
As earlier stated, you commenced drug use around the early age of 14. This involved intravenous heroin use, up to half a gram per day, seven days a week. You were also abusing alcohol, as well as starting to use cannabis. You have had a 40 year addiction, and this cycle has dominated much of your adult life. It was noted on your behalf that your life in this regard has been chaotic and that the effects of drugs have been damaging. Much of your offending has occurred in the broader context of a man dependent on substances. Notably, since being in custody, you have been in receipt of methadone to treat your drug addiction.
Psychiatric history
You have a history of mental health treatment. You have experienced psychotic episodes in the context of prolonged substance abuse. You have had some treatment with antipsychotic medication, and have experienced relapsing episodes of depression which were treated with antidepressant medication. Your psychiatric history commenced around the time you suffered the nerve palsy condition, and ceased any gainful employment. You have been admitted to various psychiatric wards in Queensland and Victoria, over the period 2004 to 2011. You have received a range of treatments for anxiety, depression, psychotic symptoms, and personality disorders both in and out of custody since 2001.
A report from Dr Nina Zimmerman was tendered on your behalf. In her opinion, the examination of you did not reveal that you suffer from enduring psychotic illness or current psychotic symptoms. However, it was noted that there is likely to be a disproportionate impact on you after receiving a custodial sentence due to your depression.
Previous convictions
You have admitted prior convictions, some of which are highly relevant and very serious. You first appeared in court in 1984 at the age of 21. Since then, you been convicted of offences involving burglary and theft, intentionally causing serious injury and burglary, handling stolen goods and recklessly causing serious injury, failing to comply with a community based order, possessing dangerous drugs, and assaulting a police officer.
You appeared before the County Court of Victoria in 1995 and pleaded guilty to charges of intentionally causing serious injury and burglary. The circumstances involved you stabbing a person several times in the chest with a sharpened screwdriver. You committed this offending in the context of animosity towards your victim, and went to the premises with the intention of harming them. The offending resulted in a total effective sentence of two and a half years’ imprisonment with a non-parole period of 20 months. The sentencing judge described your actions as disturbing, and the assault as callous, brutal and unprovoked. You were a binge drinker at the time and your actions were carried out in circumstances of a large intake of alcohol.
Significantly, in 2006 you were sentenced in the Supreme Court of Victoria on charges of intentionally causing serious injury and recklessly causing injury to a male and a female. You did this because you resented the decision by the male victim to discontinue supplying you with drugs. You stabbed him once in the chest with a knife and the female victim received injuries when she intervened in an attempt to disarm you. You were affected by a cocktail of alcohol and illegal drugs at the time. Your main victim received very serious injuries. You were sentenced to six years’ imprisonment with a non-parole period of four years for the totality of your conduct. On this occasion the sentencing judge declared you a serious violent offender, but did not move to increase the sentence he imposed upon you.
Sentencing considerations
General deterrence and denunciation
General deterrence is an important consideration in a case such as this. There is a clear need to deter others from taking up dangerous weapons and using them to solve their problems with other people. The prosecution submitted, and it was conceded on your behalf, that general deterrence is a significant consideration in an offence of this kind.
The community expects that your assault on Mr Barnicoat be denounced firmly. You employed a weapon against him and stabbed him multiple times to his body. This was a very serious assault that led to the death of your victim.
Special deterrence and protection of the community
You have two previous convictions for serious assaults using sharp weapons. These are of significant concern given your present offending. You have now resorted to using sharp weapons on three occasions, with increasingly grave consequences to your victims. However, I note that you did not seek out violence on this occasion, in the manner that you did during the two previous incidents.
Rehabilitation
You have pleaded guilty and I am told you have some remorse for your offending. It was suggested that by contacting the owner of the premises and advising him to call an ambulance for Mr Barnicoat demonstrated a level of remorse. It was submitted that you did not exhibit a callous approach to your victim. That said, however, you did not reveal that you had been responsible for his injuries, and your comments to police were somewhat less than frank at the early stages of the investigation. You did at least accept during the formal interview that you had stabbed Mr Barnicoat and were responsible for his death. I will return to the issue of your rehabilitation later.
Submissions of the parties
Submissions for the accused
It was acknowledged on your behalf that you have a concerning history of prior criminal offending and an extensive history of drug use. It was not submitted that you were acutely intoxicated at the time of offending, but that you were someone whose offending should be seen in the context of a life blighted by poly-drug dependence. It was not suggested that any drug use precipitated the events that occurred, nor was it suggested that any drug use led to a dramatic escalation of outcome. However, it was submitted that your lifelong use of drugs and their effect on you, was more broadly relevant to the penalty to be imposed.
It was also conceded on your behalf that your psychiatric history was not one that should be seen to reduce your moral culpability for the offending. Instead it was submitted that your history was relevant to your subjective experience in custody, namely that a sentence of imprisonment will weigh more heavily on you because you suffer from major depression.
It was conceded that your prior convictions for violence were rightly concerning to the Court, particularly the prior conviction for an offence involving the use of a screwdriver. However, your counsel sought to distinguish the circumstances of your prior convictions. It was acknowledged that they bespeak a capacity for violence at a high level, but submitted that the circumstances of your current offending were different in that you had not sought out your victim in a premeditated way. Accordingly, it was submitted that this was not a case where you had armed yourself to settle a vendetta, but rather, you were confronted by a rapidly evolving and dynamic situation that was different than the circumstances of your prior convictions. Accordingly, it was submitted that the Court should be cautious in giving too much weight to specific deterrence in these circumstances.
It was submitted that your offending fell in the mid-range of offending for manslaughter.
It was submitted that you acknowledged responsibility for the death of Mr Barnicoat, albeit you were not entirely forthright about the full circumstances in which he died. Nevertheless, it was submitted that the plea that you entered should be regarded as an early plea, to which attached an obvious utilitarian benefit. As a result, witnesses did not have to give evidence at a murder trial.
Additionally, your personal circumstances were described as compelling. It was submitted that your early addiction to heroin and generally dysfunctional life, operated as a partial explanation for some of your criminal history, and a partial explanation of how you find yourself to be in your present situation. It was submitted that whilst you are not in the same category of offenders who are aged in 70s or 80s, nevertheless, the sentence that will be imposed will necessarily represent a substantial proportion of your remaining life. It was submitted that this was a weighty consideration that I should take into account. Similarly, it was urged upon me that I should not impose a sentence that might be described as crushing, insofar as it may crush any reasonable expectations that you will have a useful life after being released from custody.
It was submitted that as you are not an Australia citizen, you will be at risk of deportation to the United Kingdom or Ireland upon your release. It was submitted that you will serve your sentence with a degree of uncertain suspense about what will become of you. I have taken into account, however, that at one point you commented on the fact that you would prefer to be deported.
It was submitted that your prospects of rehabilitation can be strongly linked to your capacity to remain abstinent from substances upon release from prison. Accordingly, it was submitted that I should impose a longer than normal period between the head sentence and non-parole period, to assist you to remain abstinent from drugs after your release.
Finally, submissions were advanced as to the principles under s 5 of the Sentencing Act. The principles of general deterrence, denunciation and just punishment were identified as having resonance in your particular circumstances. I was urged that some caution be exercised in placing too great an emphasis on specific deterrence, due to the distinguishing differences between your present conduct and the conduct that underpinned your offending in two significant instances previously. It was acknowledged that a custodial sentence was inevitable, and would serve the necessity for the denunciation of your conduct, as well as deterring others from like offending.
Submissions for the prosecution
The prosecution submitted that the offence of manslaughter is serious by definition, as it involves the taking of a life in circumstances of unlawful and dangerous behaviour involving violence. It was submitted that your offending occurred in the context of agitation and anger towards the deceased for his belligerent and offensive behaviour. The prosecution submitted that you chose to open your locked door and leave the safety of your room to confront the deceased, that you forcefully punched him in the mouth when you could have just walked away. In doing so, you lost self-control and acted out in a violent manner.
Further, it was submitted that you resorted to using a weapon with the intention of causing serious injury, and that your actions in stabbing Mr Barnicoat were disproportionate to any grievance that you were then feeling. It was submitted that Mr Barnicoat was stabbed in his own home, where he was entitled to feel safe. The prosecution submitted that Mr Barnicoat’s behaviour was belligerent rather than violent but you responded with a serious level of violence. It was argued that it was not reasonable for you to believe that you were under any serious physical threat.
The prosecution submitted that the objective gravity of your offending should be assessed as falling within the mid-range of seriousness.
The prosecution pointed out that having inflicted the fatal injuries, you then misrepresented the situation to others, in order to deflect blame from yourself. It was submitted that this was relevant to the question of remorse. The prosecution did acknowledge that you have pleaded guilty at a relatively early stage, which holds significant utilitarian value.
It was submitted that your moral culpability and blameworthiness for your conduct should not be significantly reduced. It was further submitted that, in view of your prior convictions in 1995 and 2006, the prospects for your rehabilitation ought to be assessed as poor and guarded.
It was submitted that the sentencing purposes of general deterrence, denunciation, protection of the community and just punishment, were all purposes of importance in your case. It was submitted that the community should clearly understand that behaviour of the type you engaged in is denounced by the courts, and that a term of imprisonment should be imposed. It was further submitted that, due to your background of violence with weapons, specific deterrence must be given considerable weight.
Conclusions
Your offending was objectively serious as it involved the use of a sharpened weapon against an unarmed man, who died as a result of your actions. On your plea, you accept that you intended to stab him, which you did multiple times. I accept that your offending occurred in the course of a dynamic struggle, and that the confrontation came to your door. I further accept that you did not go out looking to harm another person.
You are a man that has led a chaotic life, and for many years have lead a marginal existence, which ultimately saw you living in a rooming house environment. You have worked sporadically over the years due to a combination of substance abuse, mental health issues, physical illnesses, and periods in custody as a result of previous violent offending.
It was not advanced that your psychiatric history was such that your moral culpability for your offending should be reduced. However, with respect to your moral culpability and blameworthiness, I do accept that your offending should be seen in the context of the unpredictable and stressful circumstances of these events. You are nonetheless a person who is capable of serious personal violence, as demonstrated by this offending, as well as your prior violent history.
In light of your violent background, I am of the view that special deterrence must be a significant factor in the sentence imposed. There seems little doubt that your lifestyle of abusing drugs and alcohol is complicit in your resorting to violence to solve problems. This issue needs to be addressed if you are to have any hope at all of rehabilitating yourself.
Given your history for violence, including serious assaults with weapons, and in all the circumstances of your offending, I must also have regard to the protection of the community as an important consideration in assessing a just and proportionate sentence.
You are 55 years old. Regrettably, I lack confidence about your prospects for rehabilitation. While your prospects of rehabilitation appear to me to be somewhat pessimistic, I am not prepared to conclude they are closed. It was properly acknowledged on your behalf that while your present offending is to be regarded as in the mid-range of seriousness, your history for violence is troubling, given that you appear to lose your self-control too easily. You clearly lost your self-control on this occasion. It was argued on your behalf that your time in custody for this offending has been used constructively, and that your situation has stabilised significantly.
Your rehabilitation would appear to be closely linked to whether you can control your substance abuse. Your success in achieving that goal will not be known for a considerable time. You will of course be considerably older by the time you are released from custody. By then, it is to be hoped that you will have reached a level of maturity and gained insight to allow you to use the time in your life productively.
I do accept that due to your depressive illness, your experience of imprisonment will be more onerous. I have taken that into account. Further, I have considered that you will likely remain in uncertain suspense that you may be deported from Australia once you complete your sentence. You have little in the way of ties to the country where you were born.
I acknowledge that you have pleaded guilty to this offending and this must result in a decreased sentence than otherwise would have been imposed. I accept your plea of guilty was at an early stage for all practical purposes, and it represents an expression of regret for what happened. I accept that you were to some extent conflicted about your actions, given that you had lived with your victim reasonably harmoniously prior to the offending. I accept that having had the opportunity to reflect on your conduct you are now sorry for what you have done.
I have reviewed past and contemporary sentences passed in cases of manslaughter, and have had had regard to current sentencing practices. It is well recognised that the factual circumstances of manslaughter vary widely, as do the circumstances of offenders. As a result, sentences vary widely, and it is difficult to establish a broad tariff for sentences for manslaughter.
As to the question of the differential between the head sentence and the non-parole period, it was submitted on your behalf that a larger gap between the two would be justified as you would benefit from an increased period of supervision on parole due to your substance abuse issues. It was argued that this would also increase the level of protection for the community upon your release from custody. On the other hand, the prosecution submitted that your offending in the context of your prior history commands a narrower gap than might otherwise be warranted. I agree with the submission made on your behalf. I consider it in the interests of both yourself and the community that upon release from custody you will be subject to a significant period of supervision to assist your reintegration back into the community.
Sentence
Balancing all the factors relevant to you and your offending I sentence you to be imprisoned for ten years.
I order that you will serve seven years before being eligible for parole.
I declare that you have served 650 days of that sentence by way of pre-sentence detention.
Pursuant to s 6AAA of the Sentencing Act 1991, I declare that I would have imposed a sentence of twelve years’ imprisonment with a non-parole period of nine years had you not pleaded guilty.
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