R v Rossi-Murray

[2019] NSWSC 482

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Rossi-Murray [2019] NSWSC 482
Hearing dates:	15 – 18, 22 – 26, 29 – 31 October 2018, 1, 5 – 9, 12 – 16 November 2018, 12 April 2019
Date of orders:	02 May 2019
Decision date:	02 May 2019
Jurisdiction:	Common Law - Criminal
Before:	Rothman J
Decision:	Sentenced to imprisonment for a non-parole period of 7 years and 4 months, commencing 2 July 2017 and concluding 1 November 2024, with the remainder of term of 3 years and 8 months, concluding 1 July 2028.
Catchwords:	CRIMINAL LAW – Sentence – Manslaughter – trial for murder – offer to please – Aboriginal offender suffering violent and drug early environment and latter social exclusion – sentence imposed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 3A(d), 21A, 22, 22A
Cases Cited:	Kentwell v R (No 2) [2015] NSWCCA 96 R v Lewis [2014] NSWSC 1127 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category:	Sentence
Parties:	Regina (Crown) Barmah Rossi-Murray (Offender)
Representation:	Counsel: P Barrett (Crown) A Webb (Offender)     Solicitors: Office of the Director of Public Prosecutions (Crown) Blair Criminal Lawyers (Offender)
File Number(s):	2016/00205098

REMARKS ON SENTENCE

1. HIS HONOUR: The offender, Barmah Rossi-Murray, was charged with murder in that on 2 July 2016 at Schofield in the State of New South Wales, he did murder Matthew Shepherd. At trial, the offender pleaded not guilty and a jury convicted him of manslaughter. Previously, the offender had offered to plead to manslaughter, but that offer had not been accepted by the Crown.

2. The Court is required to sentence Mr Rossi-Murray. For that purpose, the Court is required to find the facts upon which the conviction was based, consistent with the jury verdict.

Facts

3. It is necessary to set out some background. The offender and the deceased were not known to each other, other than cursorily. They, apparently, were involved in a drug transaction in which the offender supplied the deceased with drugs.

4. The supply of drugs was done at the behest of Shannon Lock, a witness in the proceedings. It involved others, whom it is unnecessary to name in these remarks.

5. The finer details of the drug transaction are not particularly relevant. That which is relevant is that the offender supplied the drug “ice” to the deceased, seemingly on the basis that the deceased would provide the offender some wheels that the offender could use upon his car, a Holden Commodore.

6. Apparently, when the accused inspected the wheels, Ms Lock being in attendance at the time, they were found to be unsuitable. However, the offender still supplied the drug to the deceased to the value of between $400 and $500.

7. A lack of precision as to the appropriate amount was based on a number of factors, the most salient of which was that it was an amount that remained from drugs that had been used by the offender himself. As a consequence of that transaction, it is said that the deceased owed the offender money.

8. The offender took no steps to obtain that money or collect that debt, other than some general enquiries with Ms Lock and another individual.

9. On the evening of 2 July 2016, Ms Lock was, I assume, in the process of, or preparing for, a drug run and arranged for the deceased to drive her to a number of places. Before that run occurred, Ms Lock had been requested by the offender’s then partner to arrange for the offender to leave his then residence. This seemingly unnecessary complication was for the purpose of allowing the offender’s then partner to inform the offender that she wanted to end the relationship and to be able to inform him of that remotely.

10. The message was sent by text and the offender returned to collect his belongings. During the first part of the trip, the car in which they were travelling (which was the deceased’s car) developed a flat tyre, which was required to be changed. This occurred when the three people in the car, Ms Lock, the deceased and the offender, had travelled to the shops to buy cigarettes.

11. On return to the premises, the deceased remained in the car and Ms Lock and the offender went inside. The offender collected his belongings. The belongings included a television, a bag of clothes and, apparently, there was a missing hat, which delayed their subsequent departure.

12. Eventually, they left the house and travelled to the home of Bradley Byrnes, a co-accused to the offender at the outset of the trial. At this stage, the deceased was driving, Ms Lock was in the front seat next to the deceased and the offender was in the rear seat, behind Ms Lock. The relevance of the belongings is that it explained the seating arrangements in the car.

13. On arrival at the home of Mr Byrnes, Ms Lock left the car and the offender confronted the deceased about the drug debt to which I have earlier referred. According to the deceased, his initial request about the debt was ignored and he took a knife from his bag and poked it into the front chest area of the deceased. The offender’s conduct in poking the deceased caused a wound at the front chest, which was neither serious nor fatal. It was a minor injury, merely piercing the skin and a very short distance beyond with the point of the knife.

14. The deceased alighted from the car, had a very short conversation with Ms Lock and ran from the scene. The escape from the scene by the deceased seems to have been for the purpose of either avoiding further assault by the offender or avoiding any confrontation about the drug debt, verbal or otherwise.

15. The offender, after leaving the car, chased the deceased down the road. There were little or no streetlights and the scene was “pitch black”. It had been described as a scene at which one could barely see one’s hand at the end of one’s arm.

16. According to the offender, he could not see the deceased in front of him; kept running; and eventually ran into the deceased. During that time, the offender was holding his knife and the knife entered the deceased’s body, between two of his rear ribs, and occasioned the fatal injury.

17. The issue between the Crown and the offender’s case was whether the infliction of the injury was deliberate and, if so, whether the infliction of the injury was with an intention, on the part of the offender, to cause grievous bodily harm or to kill. As earlier stated, the jury returned a verdict of manslaughter and necessarily found that the conduct in inflicting the fatal injury was deliberate, but was not occasioned with the intention of causing grievous bodily harm (otherwise known as really serious injury) or causing death. It should be added that the Crown did not suggest that the offender had the intention of causing death.

18. Following the infliction of the fatal injury, the offender left the scene and took steps to have evidence, which might incriminate him in the assault, destroyed. It is the request for the destruction of evidence, or more accurately, the attempt to carry out that request, that led to Mr Byrnes being charged with accessory after the fact to murder, of which he was acquitted. He was acquitted because the Crown could not prove that Mr Byrnes was aware that the deceased had died at the time that any steps were taken.

The Process of Sentencing

19. As earlier stated, the jury found the offender guilty of manslaughter. Manslaughter is an unlawful killing and is available as a verdict every time a person is charged with murder. The difference between manslaughter and murder relevantly revolves around the intention of the offender at the time that the offence occurred. In order to prove the charge of murder against Mr Rossi-Murray, the Crown was required to prove, beyond reasonable doubt, that the conduct of Mr Rossi-Murray was deliberate and that, in carrying out the deliberate act, Mr Rossi-Murray had a subjective intention to kill or to cause grievous bodily harm to the deceased, Mr Shepherd.

20. There is a difference between a deliberate act and an act that is done with an intention to occasion grievous bodily harm or to kill. In this context, an intentional act is different from an act performed with a particular intention.

21. The necessary consequence of the verdict that was delivered by the jury is that the Crown has proved, beyond reasonable doubt, that the conduct that gave rise to the death was deliberate conduct, but it was not performed with the requisite subjective intention to kill or to cause grievous bodily harm. The jury, therefore, has rejected that part of the evidence of the offender that the assault was accidental.

22. Nevertheless, the jury has accepted the evidence of the offender that he did not intend to inflict a really serious injury on the deceased. As earlier stated, in the recital of facts, initially the offender poked the chest of the deceased with a knife causing a minor injury. It should be noted that the offender’s possession of the knife arose from an attempt to protect himself from an earlier threat.

23. Further, the expert evidence makes clear that the level of force required to inflict the injury that caused death was minimal. The greatest resistance to the force of the knife, in the fatal injury, was the piercing of the skin.

24. Unfortunately for the deceased, the knife was lodged between two ribs and, after piercing the skin, continued, without any or any significant resistance, to inflict the injuries that caused death. It may well be that the force required for the fatal injury was no greater than that which was required when the offender poked the deceased in the chest causing the minor injury.

25. Murder is the most serious crime in the criminal calendar. It is the most serious crime because of the value that society places upon the sanctity of human life, when such life is taken with an intention to cause really serious injury or death. Manslaughter is defined as any punishable homicide other than murder and may be significantly less serious.

26. The maximum sentence for murder is life imprisonment, which, in New South Wales, means that an offender would never receive parole and would never be released from prison, as a result of the sentence that is imposed. On the other hand, manslaughter has a maximum sentence of 25 years’ imprisonment. This is to be compared with the standard non-parole period for murder, which is 20 years’ imprisonment (except in circumstances of aggravation relating to particular vulnerable victims).

27. Manslaughter requires a punishable homicide and arises either from the mitigation of a murder, for example, on account of excessive self-defence or abnormality of the mind, or from an assault, where the requisite intention for murder is not proved by the Crown, but in circumstances where the conduct involves an unlawful and dangerous act. It is that latter circumstance that has given rise to the conviction for manslaughter of Mr Rossi-Murray.

28. Every assault is an unlawful act. However, every assault does not involve the risk of serious injury, which is required in order for the act to be “dangerous”.

29. As may be implied from the foregoing, there is no standard non-parole period for manslaughter and the circumstances that may give rise to manslaughter are so varied that reliance upon sentences in other crimes may be wholly unhelpful.

30. Sentencing is an intuitive process. It involves the determination of the objective seriousness of an offence measured not against offences of a different kind but, rather, within the range of sentences that make up, in this case, manslaughter. It also involves consideration of the subjective circumstances of the offender that has committed the crime.

31. The intuitive process involves synthesising the objective seriousness of the crime and the subjective circumstances of the offender to arrive at a sentence that best meets the objectives of sentencing. Those objectives are set out in s 3A of the Crimes (Sentencing Procedure) Act1999 (NSW), which, in turn, reflects the common law, namely, the protection of society; the deterrence of the offender and of others who might be tempted to offend; retribution; and reform: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14.

32. Those purposes overlap and, often, may point to different conclusions. Of necessity, the promotion of the rehabilitation of the offender (see 3A(d) of the Crimes (Sentencing Procedure) Act), if successful, is the best way of ensuring that the offender does not commit other similar offences. Yet, the promotion of rehabilitation may point to a different conclusion, or different synthesis, than factoring into the sentence adequate punishment and the denunciation of the conduct of the offender. Each of the purposes are guideposts to the fixing of an appropriate sentence and none of them can be considered in isolation.

33. In considering the issues to which I have referred, it is necessary to have regard to the provisions of s 21A of the Crimes (Sentencing Procedure) Act, which prescribes aggravating and mitigating factors that affect the relative seriousness of the offence. It is impermissible, however, to take into account as an aggravating factor a circumstance that is part of the element of the offence.

34. In the present circumstance, the offender used a weapon, being a knife, to inflict the fatal injury. The Court has regard to the use of the weapon as an aggravating feature.

35. Further, at the time that this offence occurred, the offender was on conditional liberty, being parole for an offence of wound with intent to cause grievous bodily harm and an especially aggravated break and enter to commit serious indictable offence with weapon. These latter offences ordinarily involve a greater significance in factors such as the protection of society and the need for specific deterrence and are, in that sense, aggravating factors in fixing a sentence for an offence of personal violence of such seriousness, such as this manslaughter.

36. Given the conclusion that the jury’s conviction for manslaughter necessarily involves a conclusion that the act of the accused was deliberate, and given that the act was the use of a knife, I infer that the intention of the accused was to inflict an injury, other than a really serious injury.

37. Plainly, the act is unlawful and involves the risk of serious injury, as the accused conceded in his evidence.

38. The conduct of the accused certainly involved a risk of serious injury, which is a necessary element of the crime committed by the offender. Overall, while the use of a knife makes the crime more serious, many manslaughter offences involve the use of a weapon of some kind and, as the Crown points out, the use of a knife is less serious than the use of a firearm.

39. Notwithstanding all of the foregoing, in terms of objective seriousness, the offence with which the Court is now dealing, when compared with other offences of manslaughter, is above the mid-range of seriousness, although not well in excess of that mid-range, and certainly not in the worst category of manslaughter offences.

Subjective Circumstances

40. As earlier stated, the offender has a significant criminal record. An analysis of the material presented by the Crown shows that since he was approximately fifteen and a half years of age, Mr Rossi-Murray has been out of prison for a mere two years and four months. The period in custody includes juvenile detention.

41. The offender was born in early 1989 and, since the age of sixteen and a half has spent sixteen months out of custody and twelve and a half years in custody. He is now thirty years of age.

42. The environment of the offender’s earlier life is the subject of evidence before the Court. Essentially, his mother was his sole or predominant carer but, not uncommonly, was required to work.

43. His father was a drug addict; was the perpetrator of domestic violence against his mother; was stricter on Barmah than on his sisters; and was not around a great deal, having been incarcerated on a number of occasions.

44. The evidence suggests that his mother did as good a job as could be expected in the circumstances, but the major disciplining was implemented by his grandparents. In that regard, his grandfather was very strict, and was, himself, hard-working. The grandfather was much stricter on the boys than their sisters.

45. The nuclear family was a mixed-race family and the offender is of Aboriginal descent. His mother had a number of relationships and the offender rebelled against the strictness of the household and spent much time out of the house.

46. One of the mother’s boyfriends, whom it is unnecessary to name, occasioned the most heated clashes with the offender and the boyfriend would lock the offender and his brother out of the house and not allow them re-entry.

47. The offender showed great promise as a rugby league player and was selected for the Penrith Panthers’ Juniors, a select group that was intended to develop players for the senior teams. His selection occurred when the offender was in Year 10.

48. At school, the offender and his siblings were the only Indigenous children and they were often isolated and felt isolated. Students and others often "picked on" the children, but particularly the offender. The offender, a well-built child, saw his role as defending himself and his siblings and responded, in kind, to bullying and would fight back.

49. One particular incident stands out and should be noted. During a football game with his school team, the opposing school to them, or some of its members, shouted racist abuse at the offender, to which the offender reacted. Notwithstanding the support of his teammates, the offender was the subject of some significant punishment from the school, without any understanding, it seems, of the nature of the abuse and the offender’s reaction to it.

50. There were other examples of a similar kind and it is clear from the evidence before the Court that the offender saw the punishment meted out to him as being unequal treatment on the basis of his race. Likewise, the bullying and abuse on the football field, when playing for his school, was, on the evidence before the Court, racially motivated. I should note that this subsequent offence committed in prison was also a reaction to what seemed to be racial taunting.

51. His home life and his life at school seem to have been devoid of an appropriate male role model and involved an environment of violence. Even where punishment was implemented for what may have been appropriate reasons, the punishment, from his grandfather for example, was physical and physical violence was a natural aspect of his life.

52. The Court has been given the benefit of a psychiatric report, the most relevant aspects of which are an important insight into the offender’s prospects of rehabilitation and past difficulties. In an introduction to his background Anita Duffy, Forensic Psychologist, with well-known experience and expertise, reported on the offender on 25 February 2019. In her introduction, Ms Duffy, a partner in Duffy Robilliard, said:

"Barmah Rossi-Murray was born in Blacktown…. He is the second eldest of four siblings born to his parents. His parents separated when he was about five years of age. His father was a Kamilaroi man, always 'in and out of gaol' and Mr Rossi-Murray had little to do with him during his childhood. He coincidentally was reunited with him when both were serving sentences at Junee Correctional Centre, and they spent a year together. His father died in 2011 from a 'hot shot' at the age of 52. He had a heroin habit and had been in custody for drug-related charges."

53. The offender was suspended from school in Year 10 for non-attendance. That non-attendance seems, overwhelmingly on the evidence before the Court, to be on account of the physical and verbal clashes with his mother's then boyfriend, to which earlier reference has been made. He has no serious health problem. As to the small amount of time spent out of gaol and the degree of institutionalisation, Ms Duffy said:

"He spoke of anxiety attacks when outside gaol. He first experienced 'spinning out' and hyperventilating two days after release from spending 18 months in Juvenile Justice. When he was in a shop he panicked at 'all the people around', felt faint and had to leave the shop and sat in his brother’s car.

He described these attacks occurring more frequently when he was outside the prison, although he did acknowledge mild levels of anxiety also when he was transferred to a different gaol. He reported experiencing the panic attacks after his last release and found it hard to adjust to life. He used drugs to calm himself and help him deal with these stressors."

54. The offender was involved in alcohol abuse, participating in binge drinking, from approximately the age of 14 and also smoked cannabis, sometimes at the same time as abusing alcohol, at that age. Later in his teenage years, he smoked heroin and used speed and ecstasy from his mid-teens. His first experience with ‘ice’ was prior to the conviction in 2008 and by the time of his arrest in 2008 he was consuming about 5 grams a day. He also used opioids and ice in gaol and it seems continues to do so.

55. As to his Aboriginal descent, Ms Duffy reported as follows:

"Mr Rossi-Murray reported pride in his Indigenous heritage. He said that despite the absence of his father to provide cultural information about his racial background, he attended courses and programs about Aboriginal culture in the Western Suburbs during his youth conducted by community elders and participated in NAIDOC days. He had some contact with his paternal grandparents when younger and had Koori friends. He played in Koori Knockout Rugby League and also Penrith Panther Juniors, when about 14 and before the drugs took over."

56. When in his early teens, he had a girlfriend that was 11 years his elder with whom he has a child.

57. As to the offence, he informed the psychologist of the facts consistent with the evidence that was called before the Court. He made it clear that his intention in chasing the deceased was not to cause his death or to inflict any serious injury but, rather, to “calm him down” and, inferentially, to scare him into paying the debt. He made it clear, in Court and to the psychologist, that he caught up with the deceased unexpectedly and “bowled him over" hitting him in the back with the knife.

58. The offender has been tested under, the Standard Progressive Matrices, which provide a measure of educative ability. The results lay in the 77th percentile of the population, falling slightly above average. As to mood, his level of depression lay in the normal range (between the 40th and 78th percentile); anxiety in the mild range (78th to 87th percentile); and stress in the moderate range (87th to 95th percentile).

59. He is easily agitated and tends to overreact to situations. He also has difficulty in relaxing; is rather touchy; and is worried about situations where he might panic and make a fool of himself. He has been diagnosed as having adult ADHD and was tested for Difficulties in Emotional Regulation.

60. Ms Duffy concludes in a manner that is most helpful and which is selectively excerpted below. The remainder of the conclusion, like the rest of the Report, is extremely useful and ought not to be underestimated, but the following extract is most relevant for the purposes of this sentencing exercise:

"Barmah Rossi-Murray's history reflects an individual who grew up in an environment where physical abuse was common and where he was frequently punished for his behaviour. He had little contact with his Indigenous father, who was in gaol for much of his childhood and was primarily brought up by his grandparents and mother of Italian heritage. When he was sent to a Catholic School, he was bullied and teased as the only person of Aboriginal descent, and he responded by fighting his persecutors. Mr Rossi-Murray had been diagnosed and treated for ADHD, but his behavioural problems persisted such that he truanted, and was eventually expelled. His history of juvenile offending continued into adulthood and he was regularly in custody.

…

In addition to their own offending behaviour that led to their imprisonment, the punitive nature of the prison experience, as well as exposure to antisocial attitudes and pro-criminal beliefs, exacerbates habits of thinking and acting that can be dysfunctional once offenders are released into the community.

Mr Rossi-Murray acknowledged he was unaccustomed to dealing with the additional stressors and pressures of being out of gaol and was anxious, suffered panic attacks especially in crowded areas and was more suspicious and reserved in his dealings with others.

…

Mr Rossi-Murray indicated that since arrest, he has been involved in physical altercations in gaol and spent eight months in segregation last year. His history of responding with aggression to perceptions of marginalisation extends from his experiences of social exclusion at school due to his Aboriginal heritage. Studies by Baumeister et al. have demonstrated in laboratory experiments that social exclusion decreases pro-social behaviour and is correlated with reduced experience of social acceptance.

The results of current mood states and emotional dysregulation measures indicate an individual who has the tendency to react with physiological symptoms of anxiety when exposed to stressors such that his ability to control his emotions or behaviour is reduced. At the time of the offence the use of drugs, particularly 'ice' to self-medicate, may have exacerbated his sensitivity to rejection, and triggered his aggressive responses. He had a limited repertoire of responses to deal with conflict or anger arousing situations, having been acclimatised to the gaol environment where such situations are often dealt with by violence and intimidation.

It is envisaged that treatment interventions should include drug rehabilitation; stress and anger management programs to address his long-term substance use disorder; and should continue post-release. He is of average intelligence and has the ability to participate in more comprehensive programs that require self-examination and offer cognitive behavioural interventions.

…

He has nominated to do the 12 months Violent Offender Therapeutic Program which enables prisoners in a therapeutic setting to work intensively on changing the thinking, attitudes and feelings that led to their offending behaviour. Individuals will work on understanding the factors surrounding their offending behaviour, developing perspective taking skills, identifying offence cycle, risk factors and warning signs, and developing self-management plans to assist in living an offence free and more satisfying life in the future.

Close supervision by the Community Corrections Service will be necessary to facilitate his adjustment into the community and offer support to help him deal with unfamiliar situations that may be stressful and anxiety provoking. As relapse into drugs is a major risk factor for recidivism, referral to drug counselling and regular testing and monitoring should be implemented. Placement in employment, such as in welding and metal work, could be facilitated by a job provider. While in custody, he could benefit from vocational training courses which can be continued in the community."

61. The reference to the foregoing reports of Baumeister is a reference to a series of studies done by Professor Roy Baumeister to which the Court, as presently constituted, has referred in previous judgments: see, for example, R v Lewis [2014] NSWSC 1127, in which the Court said:

“[39]   More to the point seem to be the factors of social exclusion referred to by Professor Baumeister and on which the offender relied in his further supplementary submission.

…

[41]   The thesis of Professor Baumeister can be summarised in the following passage and I apologise for citing it at length. In R.F. Baumeister & C.N DeWall, "The Inner Dimension of Social Exclusion: Intelligent Thought and Self-Regulation Among Rejected Persons" (2005) Journal of Personality and Social Psychology, 888, 589-504, the authors remarked:

"It is easy to propose how people ideally or optimally would respond to social exclusion. They ought to redouble their efforts to secure acceptance. Toward that end, they should reduce their aggressive and antisocial tendencies and increase prosocial behaviour. They should improve at self-regulation so as to perform more socially desirable actions. And even if improved social acceptance is not a promising option, they ought at least to become more thoughtful and intelligent and should avoid self-defeating behaviours, so as to fare better on their own if necessary. Yet our laboratory studies have found the opposite of all of these to be closer to the truth.

Initially we thought that emotional distress would be the central feature of the impact of social rejection, and all behavioural consequences would flow from this distress. This too has been disconfirmed. Across many studies we have found large behavioural effects but small and inconsistent emotional effects, and even when we did find significant differences in emotion these have failed to mediate the behaviours. Indeed, the sweeping failure of our emotion mediation theories has led us to question the role of emotion in causing behaviour generally (but that is another story).

Self-regulation and cognition, instead of emotion, have emerged from our most recent data as the most important inner processes to change in response to social exclusion. Rejected or excluded people exhibit poorer self-regulation in many spheres. They also show impairments in intelligent thought, though these are limited to forms of thought that are linked to self-regulation (that is, thinking processes that depend on effortful control by the self's executive functioning).

Nonetheless, the findings from this work have helped shed light on both the inner and outer responses to exclusion. They help illuminate why many troubled individuals may engage in maladaptive or seemingly self-destructive behaviours. They may also have relevance to the responses of groups to perceived exclusion from society as a whole. Although there are some exceptions, such as the intellectually vigorous culture maintained by Jews during the centuries of discrimination and ghettoization, many groups who felt excluded or rejected by society have shown patterns similar to those we find in our laboratory studies: High aggression, self-defeating behaviours, reduced prosocial contributions to society as a whole, poor performance in intellectual spheres, and impaired self-regulation. Our findings suggest that if modern societies can become more inclusive and tolerant, so that all groups feel they are welcome to belong, many broad social patterns of pathological and unhealthy behaviour could be reduced."

[42]   See also, J.M Twenge, Baumeister, C.N DeWall, N Ciarocco, J.M Bartels, "Social Exclusion Decreases Social Behaviour" (2007) Journal of Personality and Social Psychology, 92, 56-66.

[43]   It seems, in a similar manner to Fernando, such a factor, as that espoused by Professor Baumeister, may be used to mitigate or fashion an appropriate sentence, but not so as to impose a sentence that does not reflect the seriousness of the offence.”

62. The approach to social exclusion was confirmed by the Court of Criminal Appeal in Kentwell v R(No 2) [2015] NSWCCA 96 at [13], per Bathurst CJ; at [86]-[93], per Rothman J; and at [100] per McCallum J (as her Honour then was). The same issues apply, albeit in a slightly different way, to the situation and circumstances faced by the offender in this matter.

63. I have already mentioned the prior criminal record of the offender, which is substantial. I do not double count the effect of that prior criminal record, but reiterate that a criminal record of this kind would, ordinarily, involve a far greater significance in the need to protect society and the need for specific deterrence. Having made that comment, the offender gave evidence during the trial and at sentence.

64. The attitude of the offender was impressive, particularly, given his criminal history. The level of remorse at what he did and the result of what he did is both genuine and palpable. Notwithstanding his criminal history, his subjective circumstances are strong. I do not underestimate the effect the crime has had on the family of the deceased, but unfortunately, there is nothing I can do to undo that effect.

65. One example of his remorse is that he offered, at a very early stage in the criminal process, namely, well before the committal proceedings, to plead to the charge of manslaughter. That offer was not accepted by the Crown. The foregoing is not intended to be a criticism of the Crown, as one can understand fully why the Crown would take the view that whether it was murder or manslaughter was a matter properly to be left, in the circumstance of this case, to a jury.

66. Nevertheless, his earlier offending, this offence for which I must pass sentence, and the subsequent offence for violence in gaol, all evidence the accuracy of the Baumeister studies and reflect the kind of reaction that Professor Baumeister suggested would, almost inevitably, flow from the kind of social exclusion that the offender has suffered.

67. The offender speaks quietly, is calm and, although nervous, was an impressive witness. His letter to the Court tendered for the purpose of sentencing, which acknowledges the finding of guilt by the jury, expresses sorrow at causing Mr Shepherd's children to grow up without a father and likens the circumstance to the absence of his father during a large portion of his life. The letter says, in part:

"Seeing the pain that I have caused Mr Shepherd's family has made me reflect on life and my behaviour leading up to this point. I was bullied due to my Indigenous heritage throughout my childhood and suffered bad anxiety and aggression because I felt like I never fit in. …I know that none of this is an excuse for my criminal behaviour.

I want to deal with my anxiety and aggression through counselling and find ways to manage once I am released other than turning to drugs. I want to get clean so that I can be the best father that I can for my children. I want to work in the concreting business like my Grandfather and become someone that my kids can be proud of."

68. The offender’s statement to the psychologist, repeated in her report also goes to his remorse at his criminal behaviour. Mr Rossi-Murray was quoted as having expressed the following views:

"He expressed regret at his actions, that he had followed one 'bad situation', of hitting him in the chest, with another, of chasing him to try and rectify the situation. He did not know how to calm down the situation and had made it worse by pursuing him. He had caught up with him unexpectedly and 'bowled him over' hitting him in the back with the knife."

69. It is clear from the attitude displayed by the offender at trial and his attitude after trial to both the psychologist and the Court that he not only regrets the consequences of his conduct but also his reaction that caused him to act in a way that was unhelpful and exacerbated the situation that he then faced.

70. His level of remorse is evidenced not only by the statements he has made and the offer to plead guilty to manslaughter (of which he was ultimately convicted), but also in the manner in which his trial was conducted, necessarily on his instructions.

71. While it must be noted that the offender did not plead guilty to manslaughter, when arraigned at trial, the issues in the trial were confined to whether the infliction of the wound was accidental or deliberate; and whether it was inflicted with an intention to kill or cause grievous bodily harm. The confinement of the issues in that way was largely consistent with the earlier offer to plead and with the offender taking some responsibility for his conduct, albeit not all of the responsibility.

72. The conduct of the trial in that way certainly had utilitarian value. While it was necessary still to conduct a trial, because the offer to plead was rejected, that trial was far more confined than would otherwise have been the case. In that regard, I deliberately elide the value of the offer to plead guilty and the utilitarian value of the manner in which the trial was conducted: see ss 22 and 22A of the Crimes (Sentencing Procedure) Act.

Conclusion

73. The seriousness of manslaughter in circumstances such as this makes the only appropriate sentence one of full-time imprisonment. As earlier stated, the objective assessment of the offence is above midrange in objective seriousness.

74. The objective seriousness of the offence is to be mitigated by the strong subjective circumstances and, in my view, on the evidence before the Court, the strong chance of rehabilitation, if appropriate support is put in place on the release of the offender. As Ms Duffy makes clear, when the offender is ultimately released into the community, there will be a need for a significant period of supervision and support. That need warrants the finding of special circumstances. The criminal history of the offender and the lack of time spent otherwise than in custody, particularly as an adult, requires an extraordinary level of supervision over an extended period of time.

75. The discount I provide for the utilitarian value of the plea of guilty, even though it was made at the earliest possible time, but was not accepted, is less than the maximum, as the plea was not repeated in the presence of the jury and the trial was conducted with the issue of whether the conduct was deliberate still open and contested before the jury. I fix that discount at 15%.

76. It seems to me that the issues associated with social exclusion and the need to overcome the antisocial behaviour caused by such exclusion, to some extent, overlaps with the need for special circumstances and is best dealt with by the extended period of close supervision on parole. This, in the view of the Court, will better facilitate the rehabilitation of the offender and the prevention of recidivism.

77. I fix a starting point, before the discount for the utilitarian value of the plea, of a head sentence of thirteen years' imprisonment to which I apply a 15% discount. Once rounded, I will fix a head sentence of eleven years and, on the basis of the special circumstances and subjective factors to which I have already referred, will fix a non-parole period of seven years and four months’ imprisonment.

78. The last matter with which the Court must deal is the commencement date of the sentence to be imposed. The offence occurred on 2 July 2016. The offender was arrested on 7 July 2016. The period from 7 July 2016 until 14 October 2018 was spent, not only on remand for the current offence, but also in serving the remainder of a previous sentence for which parole was revoked.

79. It is necessary to deal with the accumulation of these sentences on the basis of the principle of totality. The previous sentence, for which parole was revoked, was a similar sentence involving the wounding and an especially aggravated break and enter. Were it not for the current offence, the parole would not have been revoked. All of these are factors that the Court considers in determining the appropriate commencement date of the sentence to be imposed.

80. If one were imposing the sentence for wounding and especially aggravated break and enter at the same time as one were imposing the sentence for the manslaughter, the accumulation would result in a shorter overall sentence than that which results from a combination of this offence and the earlier one. That, of course, is not the correct comparison to be made.

81. It seems, taking into account all of the considerations, it is appropriate to commence the sentence now to be imposed on 2 July 2017.

Sentence

82. Mr Rossi-Murray, please rise;

1. You are convicted of manslaughter in that you did unlawfully kill Matthew Shepherd, which offence is now recorded.

1. You are sentenced for that offence to a non-parole period of seven years and four months, commencing 2 July 2017 and concluding 1 November 2024, with the remainder of the term of three years and eight months concluding 1 July 2028.

2. You are first eligible for release on parole on 2 November 2024.

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Decision last updated: 02 May 2019