R v Papandrea

[1999] NSWSC 978

CITATION:	R v Papandrea [1999] NSWSC 978
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	70097/97
HEARING DATE(S):	10 August-17 August, 24 September 1999
JUDGMENT DATE:	24 September 1999
PARTIES :	Regina Andrew James Papandrea
JUDGMENT OF:	Studdert J

COUNSEL :	M. McAdam QC (Crown) C. Bruce (Prisoner)
SOLICITORS:	Director of Public Prosecutions (Crown) Trenches (Prisoner)
CATCHWORDS:
ACTS CITED:	Crimes Act
CASES CITED:	Maxwell v The Queen (1995-96) 184 CLR 501 R v Cartwright (1989) 17 NSWLR 243 R v King (1998-99) 99 A Crim R 288 R v Dunn (unreported, NSWCCA, 28 October 1997) R v McEwan (unreported, Barr J, 9 July 1998) R v Sherry (unreported, Levine J, 9 July 1999) R v Blacklidge (unreported, NSWCCA, 12 December 1995) R v Troja (unreported, NSWCCA, 16 July 1991) R v Maguire (unreported, NSWCCA, 30 August 1995) R v Dodd (1991) 57 A Crim R 349 R v Previtera (1998) 94 A Crim R 76
DECISION:	See para 50

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

STUDDERT J

Friday 24 September1999

070097/97 REGINA v ANDREW JAMES PAPANDREA

SENTENCE

1   HIS HONOUR: On 19 March 1999 the prisoner, Andrew James Papandrea, pleaded not guilty before Mr Justice Barr on the presentation of an indictment charging him with having murdered Guy Piers Janjic at Binna Burra on 15 May 1997. The prisoner adhered to that plea in this Court on 10 August 1999 and his trial began before a jury.

2   However on 16 August 1999, on the morning of the fifth day of the trial, the prisoner sought to be re-arraigned and on this occasion whilst pleading not guilty to murder pleaded guilty to manslaughter. The Crown accepted that plea in satisfaction of the indictment. Following Maxwell v The Queen (1995-96) 184 CLR 501 it is settled that a trial judge cannot reject a plea such as that entered here unless it is perceived that the prosecution acted irresponsibly in accepting the plea to the lesser offence: see in particular the joint judgments of Dawson and McHugh JJ at 514 and of Gaudron and Gummow JJ at 355-356. No such perception was warranted in this case and accordingly the jury was discharged pursuant to s 399A of the Crimes Act. The prisoner was convicted of the crime of manslaughter and was remanded until 17 August 1999 for the taking of evidence and receiving submissions on sentence. Having heard the submissions of counsel on 17 August, I remanded the prisoner in custody for sentence on a date to be fixed.

3   It is necessary now to address the facts in this matter.

4   The deceased died from the effects of a shotgun wound to his chest. The weapon from which the shot was fired was a single barrelled shotgun that the prisoner had acquired some weeks prior to the shooting. The shooting occurred at the prisoner’s home at Binna Burra at about 3.00 am on 15 May 1997. The prisoner had known the deceased for two to three years and he invited the deceased to stay overnight at the prisoner’s home after the two men had been intermittently in each other’s company at Byron Bay during the two days that preceded the shooting. The prisoner went to Byron Bay on 13 May and he met the deceased there. The two men became involved in discussions to do some work at the Epicentre at Byron Bay. On 13 May the prisoner said he had half a bottle of Jack Daniels and approximately five smokes of cannabis (T 168). He slept in his car that night. On the following day he met the deceased and they each had an injection of heroin and smoked cannabis. The prisoner said that he and the deceased had a beer and some bourbon sometime about the middle of the day (T 171). They separated for a time and the prisoner had “a few” Jack Daniels whilst he was at the RSL club during the afternoon. Then he and the deceased set off together for the prisoner’s home, stopping on the way at the Bangalow Hotel and the prisoner said he had one more Jack Daniels there (T 175).

5   The evidence of the prisoner’s wife satisfies me that the men arrived at the prisoner’s home about 10.00 pm. Thereafter the prisoner and the deceased had some beer and they both smoked cannabis from a bong. The prisoner prepared some food which the deceased was in the process of eating when he was shot.

6   The evidence does not permit me to make a precise finding as to what the prisoner had to drink or as to the precise extent of his other drug abuse. There is no reliable evidence as to the prisoner’s state of sobriety and the prisoner’s wife, the ambulance officers, and the police officers who attended the home shortly after the shooting gave no evidence of making any observation as to the prisoner’s state of sobriety. It is clear that the prisoner regularly abused drugs and alcohol and in these circumstances I am unable to determine with accuracy their effect upon him at the time of the shooting. Analysis of blood taken from the deceased showed the concentrations of alcohol, morphine and cannabinoids in the deceased’s blood but I consider it would be unreliable to draw any parallel from this evidence in attempting to assess the impact of the pre-shooting drug abuse upon the prisoner.

7 Even if the prisoner was intoxicated, and I do not find that he was, his state was self-induced and, of course, s 428E of the Crimes Act provides that evidence of self-induced intoxication is not to be taken into account in determining whether the prisoner had the requisite mens rea for manslaughter. Mr Bruce tendered a report from Professor Neering (Exhibit A). Professor Neering was given a history of the prisoner’s drug and alcohol intake prior to the shooting which does not strictly accord with the prisoner’s evidence before the Court. In any event, Professor Neering found himself unable on the history he had to determine “with any degree of precision” the “overall effect” of the drugs the prisoner had taken. Nor did Professor Neering feel capable of assessing the effect of the alcohol without a complete history of the prisoner’s long term resort to alcohol. I have not in the circumstances found Professor Neering’s report helpful.

8   It seems to me to be likely that the prisoner’s inhibitions were loosened by what he had had to drink and by his abuse of drugs, and that his co-ordination, his concentration and his judgment may have been somewhat impaired. This may go some way to explaining the prisoner’s behaviour but it certainly does not excuse it.

9   The prisoner’s wife went to bed after watching a television programme that began at 12.30 am and ended at 1.00 am. According to her evidence, and I see no reason to reject it, the relationship between the prisoner and the deceased appeared cordial. This witness noticed nothing in the nature of a quarrel, and although she heard voices after she went to bed they plainly did not convey to her that any quarrel was occurring.

10   How then, and in what circumstances, did the shooting occur?

11   It was submitted by the Crown that I should approach the case as one of manslaughter by unlawful and dangerous act. Mr Bruce accepted this for the purpose of his submissions. In accepting the prisoner’s plea of guilty to manslaughter in satisfaction of the indictment, the Crown has accepted that the prisoner did not shoot the deceased either with intent to kill or with intent to cause bodily harm, and I must approach my task in sentencing the prisoner upon the basis that he entertained no such intent. On the other hand, by his plea of guilty to manslaughter, the prisoner acknowledged, contrary to his assertions immediately after the shooting, that the act of firing the shotgun was deliberate, even though that act was not accompanied by the intent required to establish the crime of murder.

12   There was evidence, to my mind compelling, that the front end of the shotgun must have been at the very outside one metre away from the deceased when the shotgun was discharged. Indeed, it may have been as close as 300 mm away. I accept the evidence that Sgt Charleston gave about this. I accept also the evidence which Mr Wrobel gave, but before referring to this expert evidence I should address the evidence of Dr Schwartz who conducted the post mortem examination.

13   The post mortem examination revealed a shotgun wound to the right side of the chest of the deceased which was 25 mm x 35 mm with an abrasion cuff on the lower and outer margin. The upper margin of the wound was serrated but the lower margin of the wound was sharp. Dr Schwartz said that the direction of the wound track was from right to left, backwards and downwards. In the conduct of the post mortem examination wads from the shotgun cartridge were found inside the deceased’s body on the front surface of thoracic vertebrae 9 and 10 and most of the pellets lodged there as well. To the extent that the entry wound was serrated, this was consistent with the shot fired having started to spread in its movement away from the muzzle of the gun. Whilst Dr Schwartz acknowledged she was not a ballistics expert, it was her opinion, having considered the nature of the wound, that the shot was fired from a distance of about two to three feet.

14   Sgt Charleston was present when the post mortem examination was conducted and she noted the character of the entry wound on the right side of the chest of the deceased. It was her opinion that the wound was consistent with the impact of a single charge of shot having entered the upper chest with the shot passing through the body from right to left, from front to back and slightly downwards. Sgt Charleston observed where most of the pellets finished up inside the body and she also saw the wads.

15   It was Sgt Charleston’s opinion, based on the appearance of the wound itself and taking into account the damage to the shirt that the deceased had been wearing, that the shot was fired from a point between 300 and 500 mm away from the body. That opinion was strengthened by proximity test results. What Sgt Charleston did was to fire the shotgun at a blotting paper target at varying distances from such target and then to study the nature of the damage occasioned to the target. The witness fired two shots from each of the distances from which test firing was done, save for the tests conducted from 6.5 metres, where three shots were fired. These test results also led the witness to the opinion that the fatal shot was fired from a distance of 300 to 500 mm. However on cross examination the witness conceded that it was possible that the shot might have been fired from one metre away, but definitely from no further away.

16   Stubs from an appropriate testing kit were used on the hands of the deceased, both palm and back. These were sent off for analysis by a forensic officer attached to the Victorian Forensic Science Centre, Mr Harald Wrobel. He gave evidence that one of the stubs showed shotgun residue particles that had been found on the deceased’s right palm. That finding indicated, according to the witness, that the residue had been deposited there by the discharge of the firearm and that the hand was in close proximity to the muzzle or the deceased handled the firearm itself. From his experience, particles of the type found would only travel about half a metre, although in cross examination he agreed that the range could have been as far as a metre.

17   The evidence I have reviewed leads me to find beyond reasonable doubt that when the shotgun was discharged by the prisoner, its muzzle was at the very most one metre from the deceased’s chest. Allowing for the length of the weapon which the prisoner was holding, the prisoner was no more than two metres away when the shotgun was discharged.

18   The only direct account in sworn evidence of how the shooting happened was the account given by the prisoner. According to him he had placed his twelve gauge single barrelled shotgun on a table in the dining area of the house. The deceased was sitting on a lounge by the fire, some distance from the table where the shotgun had been placed. The prisoner said that he had brought the gun out to clean it, that he had the weapon in his hand when his child, sleeping in a bed in an adjacent alcove, woke up and spoke to him. He swung round, still clutching the weapon, and stepped a couple of paces towards the alcove. He said that the deceased then spoke to him and he swung around towards the deceased and it was then that the shotgun went off.

19   Detective Senior Constable Cairnduff, who at the time of the shooting was with the Lismore Crime Scene Forensic Services Group, attended the scene, and in the course of his investigations prepared a rough sketch plan of the interior of the premises. He measured the distance from the table indicated as having been the table where the gun had been resting to that part of the lounge where the deceased was sitting when he was shot as being a distance of 6.5 metres. Mr Bruce submitted that I should not find that the shotgun was discharged from that distance, and even without regard to the evidence of the prisoner, he submitted that that measurement is misleading and indeed irrelevant. Mr Bruce submitted that I would not find that the table was where the plan shows it to have been, and that I would not find that the prisoner was standing at the point from which that measurement was taken at the time the shot was fired. He submitted that I should find that the shotgun was discharged when the prisoner was standing much closer to the lounge room, and in the approximate location where the prisoner placed himself with the “cross” on Exhibit B. The expert evidence which I have reviewed convinces me that the shot was not fired from that table.

20   As to the prisoner’s evidence however, I did not find the prisoner to be a convincing witness. In particular, I did not find his account as to how he happened to discharge the shotgun to be a credible account and I do not accept it. The prisoner’s account as to what he was doing when the gun went off, given in the witness box at the trial, was not put forward in the ERISP interview in which indeed he denied firing the gun at all. In response to the following questions in the recorded interview, the prisoner gave the following answers:

“Q168 And tell me, have you fired the weapon before tonight?

A Never.

Q169 Or today?

A Never, mate. Never.

Q170 And can you - - -

A I never fuckin’ fired that weapon. I didn’t fire that fuckin’ weapon today either, right?

Q171 Right.

A I’ve never fuckin’ fired that weapon once, mate, ever, OK?

Q172 Can you tell - - -

A Don’t fuckin’ say, don’t put words into my mouth, mate.

Q173 That’s all right.

A Right. No more. I want a fuckin’ lawyer. Get fucked.”

21   Sergeant Charleston tested the trigger mechanism of this weapon. The firing mechanism required the hammer to be pulled back manually and she said that it was quite heavy to do this. To fire the weapon required between six and seven pounds pressure to be applied to the trigger. I refer to her evidence at T 129-130:

“Q. The operation of the hammer is such where the trigger is depressed that causes the hammer to fall forward?

A. Yes.

Q. And in turn, the hammer strikes the firing pin which in turn strikes the back of the cartridge which causes it to discharge?

A. That’s right.

Q. What sort of pressure is required for that weapon to cause the trigger to fire to operate?

A. Between 6 and 7 pounds.

Q. I think in your test that you did it was 6.5 to 7 pounds which means you put pressure on the trigger of between six and a half and seven pounds. Is that a light pressure for a gun?

A. It would be average for this type of weapon.

Q. It’s quite a definitive movement that is required to cause the gun to discharge?

A. Yes.

Q. Just show us then again how you go about it?

A. You push the trigger, the action release which is in front of the trigger guard. The action falls open. You then place the shotgun cartridge inside the chamber, close the weapon, you then have to cock the weapon by pulling the hammer to the rear.

HIS HONOUR: Q. What type of pressure is needed for doing that?

A. Pulling the hammer to the rear, it’s actually quite heavy.

CROWN PROSECUTOR: Q. I know you don’t like to pull the trigger on an empty chamber, but could you please show the jury what would be required to cause the hammer to fall forward?

A. (Witness indicated).

Q. In doing that the hammer doesn’t go all the way forward. Why is that?

A. It’s an internal safety mechanism on the weapon. The weapon doesn’t have any external. It’s to save a knock that may happen to the hammer. It will not travel forward onto the firing pin without the trigger being fully depressed to the rear, so that if you drop it or if you knock it it’s still safe.

Q. Even though the hammer might be dislodged and go forward it won’t go all the way to cause the gun to discharge?

A. No.

Q. In other words, you have got to pull the trigger and do it very definitely otherwise the gun just won’t go off?

A. That’s right.

Q. If one’s holding the gun, is it easy to discharge by its own weight in the sense if I am walking along with the gun cocked and open and loaded and I am just sort of walking along with the gun in my hand such as it’s hanging by the trigger by its own weight, would it readily go off?

A. No. You need to pull the trigger.”

22   Whilst Sgt Charleston did not herself test the gun to see if it would discharge accidentally, the witness was present when Mr Barber, a forensic ballistics expert, did tests on behalf of the defence to see if the gun might discharge accidentally. In the course of those tests the gun was broken at the timber wrist of the butt but during tests the weapon did not discharge, and Sgt Charleston’s conclusion, having observed these tests, was that the weapon was not subject to accidental discharge.

23   Mr Bruce cross examined this witness as to the circumstances in which the weapon could discharge (T 146-148):

“Q. Do you recall the learned Crown had the gun by his side with the gun being held by the trigger, the weight of the gun was taken on the trigger? Remember the example he gave earlier?

A. Okay, yes.

Q. You indicated in your opinion the gun wouldn’t go off by its own weight?

A. That’s right.

Q. I am not sure if he then started moving. Walking along with the total weight of the gun on the trigger on its own, if someone walked along, walked along the street, could that cause the gun to discharge?

A. Well, that would depend on how you’re holding it and how much force you are sort of bouncing the gun in your hand.

Q. Again, what if the weight of the gun is on the trigger in the downward position as the Crown had indicated with just consistent equal movement, no jerking or anything like that?

A. I still wouldn’t expect it to, no.

Q. You wouldn’t go walking down the street like this with this gun, would you?

A. No.

Q. Then bringing into the equation again this movement and perhaps at the end of one of the arcs some jerk, is there a reasonable possibility the gun could go off then?

A. Without doing it - see, this weapon takes 7 pounds to activate the trigger which is a fair force. It would depend on a lot of things, how you are holding it, how you are swinging it, how much jerk you are putting into it. It is difficult to say unless you do it yourself.

Q. If we are walking along the street with the gun in hand just moving it evenly and we trip in the gutter, there is a sudden jerking--

OBJECTION

Q. Is that a reasonable possibility?

A. Once again, how hard and everything. If you fall on the weapon while you are holding the trigger, I could give you numerous--

Q. Not falling on the weapon, but walking with the weapon moving, you fall and a sudden jerk is caused, is there a reasonable possibility that this gun will go off?

A. Yes, if it is--

HIS HONOUR: Q. Whatever you do you need 7 pounds on the trigger?

A. Exactly.

BRUCE: Q. Again, just accepting this scenario that the gun, I will just use a ruler, the gun is positioned as such with the stock under here (indicated), the gun facing slightly down, the finger just forward or just touching the trigger, and a person like this again with a movement roughly a half circle and coming to a sudden halt, is there a reasonable possibility that this gun would go off here?

A. Two factors would make the gun go off, it is cocked or whether or not the pressure that is applied to that trigger is 7 pound, so I really can’t say in these instances. They are the two things that dictate whether or not this gun goes off, cocked and 7 pounds on the trigger.

Q. Accepting the gun is cocked, it really depends I suppose on the quickness of the movement in the turning circle?

A. Sure.

Q. And the suddenness or the jolt, if I can put it that way, when you come to a halt?

A. Sure.”

24   I found Sgt Charleston to be a most impressive witness and having considered her evidence and the other evidence in the prosecution case, I am satisfied beyond reasonable doubt that:

(i) the shotgun was discharged by the prisoner when the muzzle end of the weapon was no more than one metre from the deceased;

(ii) to discharge the shotgun required:

(a) the hammer to be cocked, and this movement required quite heavy pressure;
(b) the exerting of between six and seven pounds pressure on the trigger to force it right back;

(iii) the shot was fired with the weapon in such a position as to permit of the path of the shot and the wads through the entry wound on the deceased’s body to track from right to left, backwards and downwards.

25   The prisoner gave evidence before the jury that he did not know the shotgun was loaded, and that he did not think he put “any cartridge in anywhere” (T 178). The only person who the prisoner could suggest may have loaded the weapon was the deceased, but in the course of cross examination the prisoner said that the cartridges he had been given when he acquired the shotgun were kept under the sink and that the deceased would not have known where they were kept. The prisoner admitted he lied to the police about how he came to have possession of the weapon and I do not accept the evidence that he did not think he put the cartridge in it.

26   The prisoner acquired this shotgun no more than a month before the shooting and when it was acquired, the prisoner said by way of a direct exchange when he gave the previous owner a quantity of cannabis, the gun was in poor condition. According to the prisoner he took it home and cleaned it and he did not challenge the evidence that his wife had given that he cleaned the gun three nights before the shooting. Mrs Papandrea gave evidence that she saw the gun on the night of 12 May and that the prisoner cleaned it using “some cleaning stuff” that included WD40 and “something to clean the pipe out with”. Mrs Papandrea said that the prisoner pulled the weapon apart, “the pipe from the end of it”. I accept the evidence of Mrs Papandrea to that effect.

27   In cross examination the prisoner was asked these questions and gave these answers (T 199):

“Q. See, it’s a matter of sheer commonsense, Mr Papandrea. You must have known if there was a cartridge in that weapon the Monday night you would have known it, and you would have seen it. That’s right, isn’t it?

A. Yeah.

Q. So, was there a cartridge, or was there not?

A. I didn’t see any cartridge in it.

Q. In cleaning this weapon, why did you not first of all check to see whether it was loaded?

A. I did. There was no cartridge in it.

Q. Up until just a moment ago you weren’t prepared to concede whether you knew if it had a cartridge in it or not?

A. If I was cleaning it up and I pulled it apart as it says it mustn’t have had a cartridge in it.”

28   The conclusion is inescapable that the cartridge must have been placed in the gun after that cleaning process at some time between the cleaning observed by the prisoner’s wife and the shooting two nights later. I am satisfied beyond reasonable doubt that this is what occurred, and that it was the prisoner who loaded this weapon.

29   Mr Bruce submitted that I should identify the unlawful and dangerous act on the evidence as according with the description of the shooting given by the prisoner. Since I reject the prisoner’s account of the shooting, I cannot accept that submission. I identify the unlawful and dangerous act which I am satisfied beyond reasonable doubt on the evidence occurred as being that the prisoner, having cocked the hammer of the loaded weapon, pressed back the trigger when the muzzle end of the weapon was proximate to the deceased, at no greater a distance than that which I have found, and at a time when the weapon was pointing in the direction of the deceased. Precisely why the prisoner did so, I am unable to determine and I must not speculate.

30 Of course I keep in mind that the prisoner is to be sentenced on the basis that he did not intend to cause the death of the deceased or to cause him grievous bodily harm. Nevertheless in the circumstances I have reviewed, this shooting was unquestionably a dangerous act and it caused death. Objectively I view the features of this crime as very serious, and s 24 of the Crimes Act provides for a maximum penalty for the crime of manslaughter of penal servitude for twenty-five years.

31   I turn to consider the subjective features in this case.

32   The prisoner is thirty-one years of age. He is a married man with two small children. He has a criminal record, but with the exception of one offence, none of the other matters recorded against him attracted prison sentences. Leaving aside offences dealt with at Children’s Court level, the prisoner has convictions for a number of driving offences, for offensive language, for resisting police, and for drug matters. In June 1998 the prisoner was sent to prison for six months for two offences of supplying a prohibited drug. More recently he was placed on a recognizance in May this year at the Burwood Local Court for larceny. The last two offences mentioned were committed whilst the prisoner was on bail awaiting trial on the murder charge.

33   There are I observe no firearms offences on his record and the prisoner has not committed any offence of violence to the person, since the offence of resisting police in October 1990.

34   The prisoner was first given the indication that the Crown would accept a plea of guilty to manslaughter in satisfaction of the indictment on the morning on which the plea was entered. The entry of that plea was, of course, fairly late in the course of the trial, but the prisoner was given no earlier incentive to enter such a plea and he is entitled to have that plea taken into account in his favour. Some trial costs were saved, and the prisoner sacrificed, in entering that plea, any possibility that the jury might have found that the shooting was an accident. I add, however, that on my assessment of the evidence, the prospect of such a finding was remote, but nevertheless it would have been for the Crown to negative accident beyond reasonable doubt.

35   The actions of the prisoner from the time of the shooting were consistent with the prisoner being sorry for what he had done. He called his wife to help him in endeavouring to resuscitate the deceased and he himself endeavoured to do this until the ambulance arrived. The evidence did not reveal that the prisoner entertained any ill-will towards the deceased. The prisoner told Dr Westmore on the occasion of his assessment in June 1999 that he and the deceased got on well together and that they never argued. There is no evidence before me to the contrary. I am prepared to accept Mr Bruce’s submission that the prisoner should be regarded as being contrite for what he has done.

36   Dr Westmore’s report dated 28 June 1999 sets out in considerable detail the prisoner’s history. The report refers to a work incident when the prisoner sustained a head injury following a fall. The prisoner gave evidence concerning that matter and said that he has been on medication since that accident but not on a regular basis. The medication he said was to help him to sleep and to alleviate pain.

37   Dr Westmore recorded a history of alcohol and drug abuse. The prisoner apparently began to abuse alcohol at the age of sixteen and by that time he was already using cannabis. The prisoner also described his use of heroin and amphetamines. The prisoner told Dr Westmore that he came from a stable family background but that his parents were very strict. He was only educated to Year 9, apparently having been expelled for assaulting teachers. Dr Westmore saw CT brain scan reports, apparently undertaken after the prisoner’s work fall, and concluded his report by expressing the opinion that the prisoner was not suffering from any mental illness. Dr Westmore said:

“From a psychiatric perspective there is a history of a head injury and alcohol and drug abuse and there are some personality factors present in this man but these factors do not appear to have any direct or immediate relevance to the incident, certainly on the account he provided to me.”

38   The prisoner was in custody for fourteen days immediately following his arrest on 15 May 1997 before being released on bail. He was again taken into custody to serve the sentence for the drug offences to which I earlier referred. However, after the completion of that sentence he remained in custody for a further period of ten weeks before being re-admitted to bail in relation to the murder charge. Bail was continued then until 10 August 1999. In all, the prisoner has been in custody referable to the subject offence for a period of thirteen weeks and I take that into account in the sentence I am shortly to impose. When the prisoner was admitted to bail in February of this year a condition was imposed requiring him to live at Castle Hill and to report daily to the officer in charge of police at Castle Hill. Mr Bruce submitted that the prisoner was entitled to have the restrictive nature of those bail conditions taken into account on sentence. Whether some credit ought to be given for conditions of bail in a sentencing exercise was considered in Cartwright (1989) 17 NSWLR 243 and in King (1998-99) 99 A Crim R 288. In the latter case the submission that bail conditions warrant reduction in a sentence as a matter of course was rejected: see the judgment of Hunt CJ at CL at 294. I have heard no evidence in this case as to particular hardship associated with the bail conditions although I am mindful that the prisoner was required to stay away from his home at Binna Burra. However, I am not persuaded on the material before me that there should be any reduction in a sentence otherwise appropriate because of the conditions of bail set in this court in February of this year.

39   Mr Bruce tendered a number of achievement awards for courses that the prisoner has undertaken in custody and he also tendered a report from a drug and alcohol counsellor. That report is dated 15 September 1998 and it was prepared at a time when the prisoner was serving his prison sentence on the supply prohibited drug offences. Whilst it is to the prisoner’s credit that he achieved what these exhibits record, it is to be observed that the prisoner’s behaviour in the days immediately before the subject offence was committed is indicative of further abuse of both drugs and alcohol.

40   Mr Bruce submitted that I should find special circumstances in this case particularly by reference to the ongoing need the prisoner will have when eventually he is released for supervision in relation to his drug and alcohol problems and in the interests of his rehabilitation. I accept that submission.

41   In the course of his submissions Mr Bruce referred to a number of unreported decisions. He took me to the decision in the Court of Criminal Appeal in R v Dunn (unreported, 28 October 1997); to the decision of Barr J in R v McEwan (unreported, 9 July 1998); and to the decision of Levine J in R v Sherry (9 July 1999). I have, of course, considered those and other unreported decisions concerning penalties imposed in cases of manslaughter, including many cases where death was caused by the discharge of a firearm. I have also been referred to statistics on manslaughter sentences.

42   I do not propose in the course of this judgment to record the judgments to which my research has taken me in this case as I have sought to arrive at an appropriate sentence. It has often been observed that the range of sentences for the crime of manslaughter is so broad that it is difficult to derive assistance from sentences passed in other cases, even within the same category of manslaughter and my recent research has emphasised this. So much depends upon the particular circumstances of each case. In R v Blacklidge (unreported, NSWCCA, 12 December 1995), Gleeson CJ, with whom the other members of the court agreed, said at p 4:

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

43   See, to the like effect, the dicta of Kirby P in R v Troja (unreported, NSWCCA, 16 July 1991) at p 3.

44   The classification of this crime of manslaughter as manslaughter by unlawful and dangerous act does not of itself assist in arriving at an appropriate sentence. The range for sentences in this category of manslaughter can differ markedly. In the course of his judgment in R v Maguire (unreported, NSWCCA, 30 August 1995) James J said, in a judgment with which the other members of the court agreed:

“In some cases of voluntary manslaughter where, apart from the partial defence of provocation or diminished responsibility, the prisoner would have been guilty of murder but the Crown has not succeeded in disproving either provocation or diminished responsibility, a heavy sentence will be appropriate. But there will also be cases of involuntary manslaughter, that is cases of manslaughter by unlawful and dangerous act or manslaughter by criminal negligence, where a heavy sentence will also be appropriate…”

45   I must fix a sentence which is appropriate to the prisoner’s crime and in doing so heed the importance of the gravity of the crime as well as the subjective features: R v Dodd (1991) 57 A Crim R 349 and in particular at 354.

46   My starting point must be to recognise that the prisoner’s crime involved the felonious taking of a human life. Thus in Blacklidge (supra) the Chief Justice said (at p 4):

“At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. (R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.)”

47   I must heed all the recognised principles of sentencing, including retribution and deterrence, both general and specific. I must also pay due regard to the subjective features of this case such as I have reviewed.

48 The Crown tendered a statement by Tracy Shaw, with whom the deceased had a relationship and by whom the deceased had a son. That statement has been received under Pt 6O of the Criminal Procedure Act. In R v Previtera (1998) 94 A Crim R 76 it was made plain that it is inappropriate for me to take account of the subject matter of that statement in determining a proper sentence for the prisoner. However, a reading of the statement reveals the impact which the death of the deceased has caused to the author of the statement and to the deceased’s child. The Court expresses its condolences and it is to be hoped that the grief experienced will be assuaged by the passage of time.

49   I have concluded that I should sentence the prisoner to a total sentence of nine years penal servitude. In doing so I am mindful of the period spent in custody prior to the commencement of the trial. I am also mindful of the fact that since the trial concluded in Lismore the prisoner has been in protective custody, because of death threats apparently, so I have been informed, referable to the commission of this crime. I say referable to the commission of this crime but I say no more about it. I know no more about it. I do not know the source of the threats nor what is contemplated as to the continuous of the protective custody. No doubt after the prisoner has been sentence he will be settled in the long term in a particular prison and I have been asked to recommend, and I do recommend, that the prisoner serve his sentence in Kirkconnell prison where visiting opportunities for his wife, his parents and his children can be apparently facilitated. I am mindful, as I have said, of the period spent in custody prior to the commencement of the trial and I also have regard to special circumstances in structuring the sentence which I now fix.

50   I pass sentence as follows: I impose a minimum term of six years commencing 10 August 1999 and to expire on 9 August 2005 and an additional term of three years commencing on 10 August 2005 and expiring on 9 August 2008. I specify 10 August 2005 as the first date the prisoner will be eligible for release on parole.

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Last Modified: 09/27/1999