R v Roshan (Sentence)

[2023] NSWSC 704

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Roshan (Sentence) [2023] NSWSC 704

Hearing dates:

15 May - 9 June 2023

Date of orders:

23 June 2023

Decision date:

23 June 2023

Jurisdiction:

Common Law - Criminal

Before:

Fagan J

Decision:

For the manslaughter of Rosemary Bodak at Liverpool on 20 December 2020 the offender is sentenced to a term of imprisonment of 12 years commencing on 20 December 2020 and expiring on 19 December 2032 with a non-parole period of 9 years expiring on 19 December 2029.

Catchwords:

CRIME – sentence – manslaughter – excessive self-defence – 59 year old female deceased verbally threatened to stab 34 year old male offender – offender may have believed deceased held a knife behind her back – deceased shorter and evidently physically impaired – threat as perceived by accused could have been resolved by at most a single blow – where offender knocked deceased to floor and engaged in ferocious beating and stomping of deceased’s head to cause death – response grossly disproportionate to threat as perceived

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Smith v R [2015] NSWCCA 193

Category:

Sentence

Parties:

Rex
Ronald Roshan

Representation:

Counsel:
C Curtis (Crown)
F Santisi (Offender)

Solicitors:
Solicitor for Director of Public Prosecutions (Crown)
Tsintilas & Associates (Offender)

File Number(s):

2020/360824

Publication restriction:

Nil

JUDGMENT

1. Over four weeks commencing on 15 May 2023 Ronald Roshan was tried on a charge that he did murder Rosemary Bodak at Liverpool on 20 December 2020. In his evidence at trial he admitted that he had struck the deceased, but only once. He disputed that he had inflicted multiple blunt force injuries to the deceased’s head, as the Crown alleged, or that such injuries had been a substantial cause of death. The offender advanced a case that death was caused by methadone overdose, without significant contribution from injuries sustained at his hands. He also raised self-defence under ss 418 and 421 of the Crimes Act1900 (NSW) and extreme provocation under s 23. On 13 June the jury returned their verdict: not guilty of murder, guilty of manslaughter. The offender now stands for sentence for that crime. The maximum penalty is 25 years imprisonment under s 24 of the Crimes Act. No standard non-parole period is prescribed.

2. The verdict shows that each of the jurors accepted one or other of the partial defences. In the circumstances it is necessary to consider the evidence at trial in more detail than would otherwise be required, for the purpose of making findings relevant to sentence that are consistent with what the jury must be taken to have decided.

Victim impact statement

3. It is relevant to sentencing in this case to note the background of the deceased and the way in which she and the offender came into contact. For the majority of her life, a period of about 40 years from when she was aged 19 up to her death at the age of 59, Rosemary Bodak was afflicted by the twin scourges of drug addiction and mental illness. In recounting the details, as necessary to these remarks, I do not mean to denigrate her memory or to overlook the prolonged suffering that drugs and mental disturbance caused her over many years.

4. The Court has been provided with a victim impact statement from the deceased’s daughter, Lisa. She suffered immediate, severe and disabling shock upon learning of her mother’s death, particularly from being informed of the manner and circumstances in which death was caused. Lisa’s distress and grief have continued during the 2½ years that it has taken for the offender to be brought to justice. She no doubt did all she could to look out for her mother during the last 20 years of her troubled life, as did the many health professionals who tried to provide care. Rosemary Bodak’s homicide leaves all who cared for her anguished by questions as to whether more might have been done. Lisa’s statement to the Court of the immense impact that her mother’s death has had upon her is taken into account in sentencing, as an aspect of the harm done to the entire community by the lethal violence in this case.

Background to the deceased, the offender and their encounter

5. Ms Bodak was a constant heavy user of cannabis from, at latest, early adulthood commencing in about 1980. She used heroin from about 1987. In 1996, at age 35, she commenced prescribed methadone treatment to allay her craving. The deceased remained on a methadone program up until her death, at times taking very high daily doses. From the mid-1990s she also misused prescribed benzodiazepine medications. In 2001 Ms Bodak was diagnosed with schizophrenia. Antipsychotic drugs were prescribed but her treatment was confounded by continued use of cannabis, benzodiazepines and opioids.

6. During the two years prior to her death the deceased was frequently hospitalised with toxic levels of illicit drugs, symptoms of withdrawal from benzodiazepines and/or acute schizophrenic psychosis. At times her withdrawal symptoms included seizures and foaming at the mouth. The psychotic symptoms of her schizophrenia involved visual and auditory hallucinations, delusional and paranoid beliefs, agitation and aggressive behaviour. In January 2019 the Mental Health Tribunal determined that Ms Bodak was a mentally ill person at risk of harm through “misadventure and self-neglect”.

7. In November 2020 the deceased was living with her husband of 20 years at Cartwright, near Liverpool. On 11 November 2020 she stabbed her husband in the abdomen causing life-threatening injuries, for which he underwent surgery. He was still in hospital when Ms Bodak was killed more than five weeks later. On 12 November 2020 Ms Bodak was committed to a mental health unit and remained there as an involuntary patient until 24 November 2020. She was treated with antipsychotic medication and was considered to have responded well by the time she was discharged. However, she was subject to an Apprehended Domestic Violence Order for the protection of her husband and appears not to have returned to their home. Instead, after discharge from the mental health unit Ms Bodak lived in emergency accommodation at various locations, including hotel rooms. She was readmitted to Liverpool Hospital Emergency Department on 14 December 2020, appearing drowsy and with slurred speech suggesting a high intake of a drug of some kind, possibly an opioid. Ms Bodak absconded from the hospital and returned after a few hours affected by alcohol and opioids. On this occasion Ms Bodak was discharged after two days, on 16 December 2020.

8. On 18 December 2020 Ms Bodak was found by police on a footpath, affected by polysubstance intoxication. She was taken to Liverpool Hospital and treated with naxalone to counter opioid toxicity. Ms Bodak was again discharged on Saturday 19 December 2020 and was administered her prescription dose of methadone shortly before 12:00 midday. From about 10:00 pm that evening she was loitering around a convenience store at the corner of Moore and Macquarie Streets in Liverpool, close to the Corner Hotel where the offender resided at that time.

9. The offender was born in Australia in 1986, to parents of Indian descent who had migrated to this country from Fiji. At the time of the offence he was 34 years old. The offender commenced using cannabis and alcohol in his mid-teens and continued heavy use of those substances into early adulthood. He completed his schooling to a low level of attainment. Psychiatric assessments and his presentation in the witness box show that he is of low intelligence. The offender’s substance abuse lessened during his 20s and he held various unskilled employment positions. He became self-employed in a franchise cleaning business from 2013 but this failed in 2018. Early in that year the offender’s father was diagnosed with terminal leukaemia and he died in November 2018. This contributed to the offender becoming acutely depressed and unable to carry on his cleaning business. He resorted to misuse of drugs and alcohol. In February 2019 the offender presented at a hospital emergency department in a delusional state, with disordered thought and paranoid hallucinations. He was living with his mother at the time and had displayed aggression at home. The psychosis was drug induced and it resolved while he was hospitalised.

10. As a result of his aggressive behaviour the offender was excluded from his mother’s home from some time in 2019. An Apprehended Domestic Violence Order was made for the protection of his mother and he breached this order multiple times, in March 2019 and in February and September 2020. The offender lacked stable accommodation during 2019 and 2020. He initially resided at a shelter for homeless men in Fairfield. For about two months prior to the homicide he had been residing at the Corner Hotel. The offender had no regular activity from when his cleaning business failed in 2018. While he was living at the hotel he used a nearby gym from time to time. In the period leading up to 20 December 2020 the offender used cannabis and alcohol heavily and more or less continuously. He used methyl amphetamine less frequently and had most recently used it on the night of 19 December. The offender had commenced using heroin by late 2020 and had last used it in about the first week of December.

11. At about 12:35 am on Sunday, 20 December 2020 the offender was wandering aimlessly outside the convenience store located across Moore Street from his hotel. He then commenced a conversation with Ms Bodak, who was sitting on a milk crate outside the store. By his own account, which there is no reason to doubt in this respect, the offender ascertained from Ms Bodak that she was homeless. He offered that she might stay the night in his room, using the bed while he slept on the floor. Ms Bodak accepted the offer and at about 12:50 am they both entered the room. Ms Bodak slept there until 6:50 am, with only one interruption when she left the room briefly to use a communal bathroom at about 3:00 am.

12. At about 7:45 am the offender and Ms Bodak left the room together. They went downstairs and out onto the footpath of Macquarie Street. Ms Bodak walked away from the hotel entrance for a short time to ask someone for a cigarette but then returned to the vicinity of the entrance and remained there with the offender until just before 8:20 am. I accept the evidence of the offender that at that time he told Ms Bodak that it was time for her to leave and that he went back up to the room with her for the purpose of allowing her to collect one or two shopping bags that contained her possessions.

The offender’s attack upon the deceased

13. The offender gave evidence that upon returning to the room Ms Bodak sat down on a chair and appeared to be dozing off. She ignored his repeated directions that she should leave. The following are extracts from answers given by the accused to describe what occurred next:

A. I sat back on my bed and then I just I'm just thinking, why doesn't this person leave, you know. So I said, you know, she said she was feeling sick, I let her be for a bit and then I've gone up to her again and I shook her and I said, "Listen, you need to leave, you know", and she said something to me like that pissed me off […]

A. […] I said, "Just grab your stuff and fuck off", and she said, she looked at me and said, "Fuck off, you black dog".

A. Then I have called her something like ‑ something like being a gutter whore, something like that, her being a gutter whore or something like that.

A. I sat down on my bed. Then she got up.

A. Yeah. So me calling her that name, she just got up.

A. Then she has come up to me and stood over me.

A. She got close, like I felt like I was out of my comfort zone, you know.

A. She told me, she said I need to watch what I say otherwise I would end up getting stabbed and she would get people to come after me.

A. She said to watch what I say otherwise I would be getting stabbed and she would get her boys or her people to come after me.

A. She had one hand behind her back and one hand was waving around like a spastic, like just waving around. I don't know what was wrong with her, just waving around.

Q. When she was doing that and said these things, how did you feel?

A. Just this person's mentally something wrong with her, she is sick or something. Like I felt intimidated and frightened.

A. Yeah. I got up and she backed off a little bit and then she like kind of, what's that word, like made me like think she was going to hit me so I would flinch or something, you know what I mean and I thought she was going to hit me so then I have reacted and then just decked her.

A. In the face, in the head. I can't remember, like face, in the top of her face so yeah, head, like on the temple or something like that.

A. It may have been the right [fist], I can't remember, right, I don't know, just I know that at the time I just threw one at her head.

Q. Do you mean by that that you knocked her to the deck, as in the sense of knocked her down?

A. Yeah, she got knocked to the deck, yeah, she fell down.

14. The offender said that prior to threatening him the deceased had pushed over a clothes drying rack that he had set up in his room. He gave this answer:

She has gone over and she has pushed it, like in an angry way, she was walked over and pushed it and then she has walked over to me and she said what she said, like watch your mouth, otherwise, you know, I am going to get bashed and stabbed and people are going to come after me. That's what made me think, you know, like this person's not joking around, like not being sarcastic, she is actually being serious.

15. The offender’s account up to that point is not implausible. The deceased’s recent violent attack on her husband and her aggression towards hospital staff during emergency admissions over the previous week show that her mental illness was causing behaviour that others could find threatening. Acceptance of the above evidence is consistent with the jury’s verdict. On the other hand, much of the offender’s evidence as to what followed is fanciful and was evidently not regarded by the jury as a reasonably possible version of events.

16. The offender claimed that after he knocked Ms Bodak to the floor she commenced “smashing her head on the ground/on the carpet”. He said that she did that multiple times, he could not remember how many times or for how long. He again “told her to grab her bags and then to piss off”. She got up, “looked like she was fully conscious”, then said words to the effect that she was sick of everybody and hated men before producing a knife and commencing to slash her own throat. The offender said that the deceased then stabbed herself in the throat. He claimed to have been traumatised by witnessing this and said that he left the room and paced the corridor outside. CCTV surveillance of the corridor showed that he left the room at 8:34 am, 14 minutes after he and the deceased had entered. He was seen on the CCTV re-entering his room at about 8:38 am. He said that he then concluded Ms Bodak was dead, just by looking at her, and he used a white electrical cord placed under her forehead to lift her head for the purpose of putting down a sheet to stop her blood spreading on the carpet. The offender then draped the sheet over the deceased’s body.

17. When Ms Bodak’s body was located in the room by police later in the day it was readily apparent that the injuries to her face were extensive. At autopsy on 23 December it was found that she had multiple fresh bruises all over her face and scalp. She had received blunt force blows from all directions to her head and face. These were injuries that could not possibly have been self-inflicted by the deceased banging her head on the carpeted floor. I am satisfied that they were caused by the offender punching the deceased multiple times, or banging her head on the floor, or stomping on or kicking her head, or some combination of those means. It was submitted on behalf of the applicant that he could not have stomped on her face without leaving imprints of his shoes in the facial tissue. There was no evidence of such imprints but nor was there evidence to establish that shoe imprints would necessarily be left in the flesh if stomping occurred. Forensic analysis showed “apparent flesh” and hair in the indentations of the soles of the offender’s shoes, which was DNA matched to Ms Bodak. The offender’s hands were not significantly damaged in such a way as to confirm multiple punches. That does not, in all the circumstances, give rise to a reasonable about repeated punching but it may indicate that there was a significant amount of head banging and/or stomping and/or kicking to cause the injuries that were seen.

18. The deceased’s throat had been slashed multiple times, more or less horizontally, and she had two stab wounds to the throat. None of the knife wounds had affected vital structures. Dr Little, the forensic pathologist who carried out the autopsy, considered that they had not contributed to her death. Dr Little found no physical evidence of strangulation.

19. At 11:01 am on 29 December the offender phoned his cousin, Mr Kumaran, and requested that he come straight to the hotel. Mr Kumaran arrived shortly after 11:40 am and had the following exchange with the offender:

A   I asked him “what’s going on” and he said “I just stabbed”, he goes “I’ve just stabbed someone” or “I’ve slashed someone”, I said “what, where, what’s going on”, and he goes “I’ve murdered someone upstairs in the room”.

The offender had never learned the deceased’s name.

20. Mr Kumaran persuaded the offender to go to Liverpool Police Station and turn himself in. On arrival the offender told Leading Senior Constable Richardson, who was on the desk, “I killed someone”. Shortly afterwards he had this exchange with Sergeant Kenny:

Sgt Kenny   So what happened?

Offender   Umm, I’ve been smoking drugs and drinking alcohol and I had like a mental episode and I hurt somebody you know.

[…]

Sgt Kenny   So what did you actually do?

Offender   Umm, strangled her, umm put a knife through her throat, umm yeah.

21. The offender was arrested. A recorded interview commenced at 4:27 pm after police had attended the hotel room and found the deceased’s body. The offender’s answers included the following:

A   Like, yeah, I’m disgusted with myself, to tell you the truth.

Q32   OK. Why are you disgusted with yourself?

A   I just murdered someone.

[…]

Q80   Yep. And mate, what happened after that?

A   Yeah, whatever you saw in the room, sir.

Q81   We found her dead lying on the floor. Can you tell us how that happened?

A   Yeah. I did whatever, what happened, it was, I did it, you know. Like I wasn’t lying. I don’t know what came over me […]

Q82   Yeah. So mate, how did it happen?

A   It just hit the fan, it just got violent and, and, yeah.

Q83   When you say you got violent, like what did you do?

A   I lost control of myself, man.

[…]

Q188   And what was the conversation when you met him [Mr Kumaran] in person?

A   […] I said, What do I do now, bro’? I’ve, you know I got drunk and high last night and lost, lost control of myself. […]

[…]

A304   Like I said, I was just in a bit of a mess and I had a mental episode and I fucked up. You know what I mean?

22. At Q86-105 the offender admitted to having strangled the deceased with an electrical cord. He said he looped the cord once around her neck. In the absence of any physical evidence of strangulation at autopsy I am not satisfied beyond reasonable doubt that any significant restriction of the deceased’s airway occurred. However, in light of his answers on the subject of strangulation I do not accept the offender’s improbable description of having merely tried to lift the deceased’s head with the electrical cord. I am satisfied that his answers to the investigating police refer to an attempt to strangle but I am equally satisfied that the attempt was ineffectual and inconsequential. I pay it no attention in assessing the gravity of the offence.

22. The offender’s admissions to Mr Kumaran and to Sgt Kenny and at Q80-81 in the interview are powerful evidence in support of the conclusion that the slashing and stabbing wounds to the deceased’s throat were inflicted by the offender. The admissions to Mr Kumaran were almost the first thing that the offender said to any person after his physical conflict with the deceased in his room. His statement to Sgt Kenny that he “put a knife through her throat” was the first detail that he provided to a police officer and it is perfectly clear. When the offender told the interviewing detectives in answers to Q80-81 that “whatever, what happened, it was, I did it”, he was referring to the deceased as he knew the police would have found her on the floor of his room, with her throat slashed and stabbed. When the deceased was prone on the floor, at least dazed and more likely unconscious as a result of the multiple blows to her head, she was in a position where the offender could readily have inflicted the knife wounds. I reject the submission made on behalf the offender that this could not have occurred without significant amounts of her blood having come in contact with his clothing. There is no reason why that should have been so if she was immobile on the floor, with the offender standing over her, when the knife was used.

23. The Crown case was conducted on the basis that, of all the injuries sustained by the deceased, only the multiple blows to her head were capable of having caused death. The jury’s verdict entails that they were satisfied beyond reasonable doubt that acts of the offender were a substantial cause of death. They must therefore have concluded that the offender inflicted the blows to the head upon which the Crown relied. The offender’s answers to Q80-81 embraces all of the head injuries. The offender gave those answers, to the effect that he had done whatever the police found in his room, knowing that this included the extensive battering to her head and face that was readily visible to him before he left the room and that the police would have seen by the time he was answering their questions.

24. I am satisfied beyond reasonable doubt that all of the significant injuries found had been inflicted by the offender between 8:20 am and 8:34 am.

Excessive self defence rather than extreme provocation

26. The jury must have accepted, at least as a reasonably possible version of events, that when the offender insisted Ms Bodak should leave she became abusive and threatening in the manner and to the extent that he described. For the purposes of the defence of extreme provocation, the jury were directed to consider whether the Crown had proved beyond reasonable doubt that such conduct as they found the deceased had engaged in towards the offender did not amount to the serious indictable offence of intimidation, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The jury may well have found that that element of extreme provocation was not excluded. They may also have found that the Crown had not disproved loss of self-control on the offender’s part. The jury were directed, in accordance with s 23(2)(d), that they should find that the offender’s acts causing death were in response to extreme provocation and that their verdict should be not guilty of murder, guilty of manslaughter if the Crown had failed to satisfy them beyond reasonable doubt that the conduct of the deceased was not such as:

could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased.

27. The jury’s verdict does not require me to accept that proposition in respect of the events that occurred here. Rather, I should understand their verdict as based upon excessive self-defence. According to the offender’s description of the deceased’s response when he asked her to leave, the degree of provocation to which her conduct gave rise was very moderate, by the objective standards of an ordinary person. It would be understandable that the offender should have been angered. It is unlikely that he had much insight into Ms Bodak’s mental illness and her lack of control over her own behaviour. Her refusal to depart and her threats would have appeared as no way to repay him for having shared his room and given her shelter for the night. I am not bound to conclude that the jury would have found the deceased’s ingratitude and her threats capable of causing an ordinary person “to lose control to the extent of intending to kill [her] or inflict grievous bodily harm”. To an ordinary person, even one at the lower end of the range of intelligence and equilibrium, the deceased’s conduct would not have prompted an out-of-control beating, head banging, stomping and/or kicking to cause grievous bodily harm or death, as occurred. The response of an ordinary person would not go beyond verbal expressions of anger and a call to the hotel management to remove the visitor who was overstaying her welcome.

28. In my assessment, to sentence the offender with due regard for the jury’s verdict I must accept that he believed it was necessary to use force the force that he did in order to defend himself against Rosemary Bodak but that his response to her threatening behaviour was not reasonable in the circumstances as he perceived them. The objective seriousness of the offending is affected by the degree to which the stabbing exceeded a reasonable response. That requires that I determine precisely what circumstances of threat the offender subjectively perceived: Smith v R [2015] NSWCCA 193 at [44]. On the balance of probabilities I accept that he believed the deceased may have had a knife and that she may have been in a position to carry out her threat of stabbing. He could not have believed that she was able, immediately, to cause others to assist her in doing him harm. The offender had no indication that any potentially violent associates of Ms Bodak were in the vicinity and in any event access to the accommodation area of the hotel was secured.

29. The deceased was shorter and much older than the offender and she walked in a manner that indicated spinal injury or degeneration. I am satisfied beyond reasonable doubt that the offender perceived her as no more of a threat than one that could be neutralised by a single punch, which he said had occurred. Although the offender said that Ms Bodak was able to get up after he had knocked her down, he gave no evidence of any resumption of threat from her. I am satisfied beyond reasonable doubt that she did not get up and that his ferocious beating, banging, kicking and/or stomping of her head followed upon his having felled her with the first blow. That sustained and fatal attack was a grossly disproportionate response to the circumstances as he perceived them. Even the initial blow was excessive. Everything that followed was manifestly unnecessary in view of how easily Ms Bodak was “decked”, in the offender’s terms. There is no reasonable doubt that the offender lost self-control, as he repeatedly acknowledged to the investigating police, and that is why his attack on the deceased escalated to the level it did.

30. The knife wounds to the deceased’s neck were integral to the single course of conduct comprising the whole of the offender’s response. The infliction of those wounds is evidence of the degree of the offender’s loss of control. I accept the Crown submission that the offender must have intended, by his excessive response, to cause death. The blunt force trauma to all parts of the deceased’s head is in my view sufficient to establish that intent beyond reasonable doubt. The addition of the stabbing wounds confirms the inference but in my opinion is not essential to it. I assess the excessiveness of the offender’s response to the perceived threat from the deceased on the basis of the blows to the her head only, those blows having been a substantial cause death and it having been accepted by the Crown that the knife wounds were not an additional contributory cause.

The course of the trial

31. The offender’s voluntary surrender shortly after the homicide and his admission to police that he had killed Ms Bodak created an initial impression of acceptance of responsibility, which would be significant to his prospects of rehabilitation. However, at trial the offender disputed that he had inflicted the extensive blunt force trauma to the deceased’s head, as recounted above, and also disputed that that trauma had been a substantial cause of death. The offender advanced in his defence an affirmative case that death had been caused by methadone overdose alone, with the blows to the deceased’s head having been merely coincidental in time with her demise. Extensive hotel and street CCTV coverage showed Ms Bodak apparently physically sound from 10:00 pm the previous evening until 8:20 am when she was last seen alive walking into the offender’s hotel room. The next sighting of her was in a severely beaten state, dead on the floor of that room. It was a very unpromising contention that her death was not significantly contributed to by the blows the offender had dealt her.

32. The Crown led evidence from Professor Buckland, a neuropathologist who had examined the deceased’s brain. Both he and Dr Little said that the brain had shown no visible sign of injury, such as significant subarachnoid bleeding. A beta-APP staining test did not produce a positive result for diffuse axonal injury; that is, damage to fibre tracts in multiple regions of the brain. The absence of a positive staining result may have been attributable to the deceased not having survived for more than 35 minutes after she had sustained the externally visible head trauma. Her survival time is not known. The end result was an absence of evidence of physical injury to the tissue or structures of the deceased’s brain.

33. Both of those witnesses and Professor Duflou, who gave expert evidence as a forensic pathologist for the accused, agreed that the deceased could have suffered concussion, with loss of consciousness, from the blows to her head. Professor Duflou considered that “the deceased has probably sustained concussion”. Dr Little said that concussion would not have caused any observable physical damage or abnormality to the brain. Similarly, Professor Buckland said that concussion would not leave damage that could be detected visually or with a light microscope or by beta-APP staining. He said that the damage from concussion would be “at an even smaller scale at the molecular level”. Professor Duflou agreed, in the following part of one of his answers:

concussion is certainly a form of brain injury. It is generally a form that is at a more molecular and biochemical level.

He said that people who have suffered concussion and whose brains may be examined posthumously if they then die from other causes, do not as a general rule have “structural brain damage that is identifiable on standard imaging techniques”.

34. Dr Little explained concussion in the following terms:

Well, concussion is [a] term that's used to describe a temporary loss of brain function and it usually follows a blow to the head, and I guess most people would be familiar with it in terms of football players who get knocked out when they're playing football for a certain period of time.

35. Professor Buckland described concussion as “a more mild traumatic brain injury”. He said that it could result in not only loss of consciousness but cessation of breathing. The following two answers are important:

It appears from quite a significant body of experimental evidence and observation that many, if not all people after suffering a trauma to the brain undergo a period of not breathing. It may be with a small amount of trauma to the brain, it may only be a few seconds, but as the trauma increases, it seems that the period of apnoea or cessation of breathing can increase, in fact up to many minutes and in some cases it may lead to respiratory and subsequently cardiovascular collapse.

My understanding is it can definitely occur in the absence of any other substance [in the bloodstream] but certainly having a depressant on board, particularly alcohol, will worsen the effects of this impact apnoea.

I'm not aware of any evidence that demonstrates that [methadone] definitely does worsen the concussive apnoea, nevertheless it is also a depressant, a respiratory depressant so I would reasonably expect that it would make it worse.

36. Professor Buckland said that concussive apnoea, as described above, is a recognised mechanism of causation of death in people who have been concussed and whose brains exhibit no detectable physical injury when examined post-mortem. A second mechanism in such cases is that the concussed individual

may be rendered profoundly unconscious and in a position where their airway is compromised and they are unable to breathe and they are also unable to rouse themselves to move to a position to relieve that obstruction to their airway.

37. Dr Little took into account that the deceased’s methadone dose of 110mg had been taken about 20 hours before death and that her post-mortem methadone concentration was 1.3mg/L. The doctor described the possibility of positional asphyxia, in conjunction with concussion and loss of consciousness, as follows:

I think her death was probably a combination of the injuries and the high methadone level. Although the methadone level may not have been fatal of itself, I wouldn't expect that someone with a level of methadone as high as hers would be completely normal. I would expect that she would have some form of obtundation […].

Basically she would not be performing normally. […] her reflexes would be blunted and she may look almost drunk to someone who was observing her. What it would mean if she had a head injury and the head injury caused a concussion, […] that she could potentially fall into a funny position and block her airway and that could make her not be able to recover because of her high level of the methadone.

38. Dr Little then described an alternative mechanism of death by concussive apnoea, as follows:

[There is] nothing in the medical literature about it, although methadone is a suppressive drug on mental function and on respiration, similar to alcohol. There […] are a number of articles describing what is called post‑concussive apnoea in people who have had a head injury and are intoxicated with alcohol, and that means that the apnoea means they stop breathing and they can die, and there are quite a number of cases in the medical literature of that, but there are none with methadone.

[…] both alcohol and methadone cause depressive effects on the brain, so that it depresses many brain functions, but including your respiration.

Dr Little’s opinion was that death was caused by a combination of head injuries and the blunting of the deceased’s responses by her high methadone blood concentration. She said the mechanism would have been loss of consciousness due to concussion and either concussive apnoea “in combination with her depression of her respiration from the methadone” or positional asphyxia if she “fell into an abnormal position which blocked her airway even further”.

39. The evidence of Professor McDonald-Christie, a toxicologist who gave expert evidence in the defence case, supported the opinions of Professor Buckland and Dr Little that loss of consciousness through concussion could be impacted upon by suppression of breathing reflex caused by methadone in the bloodstream. He explained that methadone is an opioid. He gave these answers about methadone’s effects upon the body:

A   [The] individual who's intoxicated by an opioid simply doesn't naturally respond to those challenges to the respiratory system. So their respiration may be fine when no other compromise on the respiratory system is imposed such as positional asphyxia or sleep apnoea which is a similar phenomenon or any other compromise of respiration, and that's fundamentally because our respiratory drive is driven from a part of the brain that's profoundly affected by opioids and the reflexes are blunted and all of the reflexes are blunted. […] The problem with high doses, it suppresses the ability of the body to respond to the major emergency in respiration which is increase in carbon dioxide and, secondly, reduction in oxygen in the blood. The reflexes being blunted could come from any cause and the individual will not respond properly, that's the fundamental reason why most opioid overdoses come during sleep where there is more stress on respiratory drive and respiratory drive is actually fundamentally reduced. And the reflex to carbon dioxide and oxygen is what maintains our normal oxygen saturation between sleep when respiration is slowed down to a low rate.

Q. Is one of the circumstances that that would pertain to would that include the possibility that someone was badly assaulted and placed into a concussion because of a trauma to the head, is that the kind of circumstance where methadone would then act to cease breathing?

A. Yes. Yes, indeed. Indeed so. Somebody who suffered an injury that reduces consciousness by another mechanism will quite possibly have respiratory compromises as a result of that, and all of the mechanisms that I've described will apply to the same individual just as sleep does which is a state of reduced consciousness, but also a state of relaxation of respiratory muscles. Concussion and reduction or loss of consciousness can do exactly the same thing and that can interact with a high level of methadone.

Q. So that would be a circumstance where methadone would be capable of causing death?

A. Methadone, I would not say methadone be capable of causing death, I would say the interaction of methadone with another form of loss of consciousness can cause death.

HIS HONOUR

Q. You mean to say, Professor, in that circumstance the methadone could be a contributing cause of death?

A. Correct, your Honour.

40. Professor Duflou was alone amongst the expert witnesses in not accepting that methadone, acting as a respiratory depressant, could operate in conjunction with concussive apnoea – the phenomenon of cessation of breathing following head trauma and concussion – to cause respiratory and subsequent cardiovascular collapse. He acknowledged that respiratory depression caused by alcohol has been found to operate in this way in cases of concussion. He also acknowledged that methadone is, like alcohol, a respiratory depressant. His reticence on the issue appeared to rest upon the fact that the two substances are different, although he did not say in what relevant respects, and upon the absence of published, peer reviewed research on the subject. Professor Duflou gave these answers:

A.   I think what's known is that if you consume large amounts of alcohol and you sustain in broad terms a concussive type head injury you may die suddenly and unexpectedly in those circumstances. There have been a number of cases reported in the literature. Now, alcohol at high doses causes respiratory depression, methadone at toxic doses causes respiratory depression, but I don't think that the two drugs can be related to each other. They are very different substances with very different actions on the body and I think, as I said in my evidence in chief, I am not aware of a single case of opioids being attributed to death due to post concussive apnoea.

Q. I think part of the opinion that the jury received from Dr Little was that, although methadone and alcohol are different intoxicants, one thing that they have in common is that they both suppress respiratory function?

A. They do.

Q. And the Doctor expressed the view that as post concussive apnoea in the presence of alcohol is attributed medically to the suppression of breathing function, that there may be just the same consequence with methadone which has that effect on the body in common with alcohol. How do you respond to Dr Little's view in that regard?

A. I think, your Honour, each part of those statements are correct. The problem that I have is that there is simply no peer review research based evidence in the form of case reports, case studies, detailed analysis where it has been shown that opioids of any type, and I include heroin, morphine, methadone, oxycodone, all the usual types of opioids, as causing post concussive apnoea. Just because a one drug has an effect on the body and another drug has a similar effect doesn't mean that the mechanism of that effect is the same at all.

41. The jury clearly did not consider that Professor Duflou’s reasons for differing from the other experts gave rise to any reasonable doubt that the head trauma inflicted by the offender was a substantial cause of death, operating either alone or in conjunction with the respiratory depressive effect of methadone in her system. I share the jury’s conclusion, as I take it to have been, that this mechanism of death was proved beyond reasonable doubt. Overall, Professor Duflou’s evidence adopted a purely medical approach to causation. With respect to each of the physical injuries that had apparently been inflicted by the offender, Professor Duflou found reason to reject them as “the” cause of death, either alone or in combination. The deceased’s high methadone level was within the potentially lethal range although it was no higher than the level to which she had, by inference, demonstrated over many years a tolerance of doses up to 200mg per day.

42. Professor Duflou’s approach was to treat her high methadone level as “the last man standing”, which he felt he could not exclude, on medical grounds, as “the” cause of death. This was at odds with the legal test of causation that the jury were required to apply. They had to consider whether the Crown had proved beyond reasonable doubt that the blows inflicted to the deceased’s head were a substantial cause of death, rather than “the” cause. A finding to that effect was open to them, notwithstanding that they probably accepted that the high level of methadone in Ms Bodak’s blood may also have contributed to death, perhaps substantially.

Remorse, prospects of rehabilitation, risk of re-offending

43. I accept the Crown’s submission that the offender is entitled to some mitigation of penalty on account of his prompt voluntary attendance at the police station, which enabled immediate commencement of an investigation. However I cannot treat that initial conduct as demonstrating remorse. In light of the offender’s plea of not guilty and his contest regarding whether he inflicted the multiple blows to the deceased’s head and whether those blows were a substantial cause of death, the position at the time of him coming before the Court for sentence is that he does not accept responsibility for the death of the deceased. He remains in denial and does not exhibit remorse

44. I accept the Crown’s characterisation of the offender’s antecedents as “unremarkable”. His record of convictions does not commend him for lenience but is not significantly adverse. He committed minor offences around the age of 18 (up to 2004) but thereafter nothing was recorded against him until the personal crisis following his father’s death in 2018 resulted in domestic violence offences affecting his mother. Allowance may be made for minor offending in late teens, especially as it was followed by 15 years without any contact with the law. The breaches of Apprehended Domestic Violence Orders in 2019 and 2020 are explicable by reference to intense personal circumstances and do not of themselves indicate a significant risk of future offending.

45. I see both the risk of future offending and, on the other hand, the prospects of the offender’s rehabilitation in the general sense of adopting in future a moral and law-abiding way of life, as entirely dependent upon whether he can free himself from substance abuse. I have reservations about his prospects in that regard, considering the many years of his life to date during which he has abused a variety of substances, to the point of drug induced psychosis without even that experience being a sufficient deterrent. I recognise his mother’s loyalty to the offender and her intention to continue her support for him. That provides the best hope for the offender to be rehabilitated upon his release, albeit that his mother has apparently not been able to get through to him in the past.

Other considerations

46. I do not find in the reports of Drs Calvin and Martin, nor in their oral evidence given in the trial, any basis for finding that the commission of this offence was in any way contributed to by psychiatric disorder or that the offender’s moral culpability for what occurred is reduced by any disorder of that nature. The offender’s perception of Ms Bodak, his assessment of her conduct and his beliefs about the situation that arose between the two of them may well have been clouded or disturbed by his persistent abuse of alcohol, cannabis, heroin and methyl amphetamine over years leading up to the morning of 20 December 2020. The possibility of such disorientation caused by self intoxication is not a matter that can be taken into account in reduction of culpability or otherwise in mitigation of sentence.

Special circumstances

47. The offender’s counsel urges that special circumstances should be found in order to reduce the ratio of the non-parole period and thereby extend the duration for which the offender would be subject to supervision under parole in the community during the latter part of his sentence. The submission is particularly addressed to the need for the offender to be supported under parole conditions in his endeavour to abstain from substance abuse. I do not accept that this consideration warrants a finding of special circumstances. The sentence that must be imposed for an offence of this gravity is of such a length that the period of parole, applying the default ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), would be adequate for the purposes of supervised rehabilitation and reintegration into the community.

Orders

48. The offender has remained in custody since his arrest on 20 December 2020 and his sentence should date from then. The offender is informed that that on completion of his sentence the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) will apply to him.

1. For the manslaughter of Rosemary Bodak at Liverpool on 20 December 2020 Roland Roshan is sentenced to a term of imprisonment of 12 years commencing on 20 December 2020 and expiring on 19 December 2032 with a non-parole period of 9 years expiring on 19 December 2029.

2. The earliest date upon which the offender will be eligible for release to parole is 19 December 2029.

**********

Amendments

26 June 2023 - Tsintilas & Associates

Decision last updated: 26 June 2023