R v Saliba (No 4)

[2025] NSWSC 659

Supreme Court

New South Wales

Medium Neutral Citation:

R v Saliba (No 4) [2025] NSWSC 659

Hearing dates:

18 June 2025

Date of orders:

30 June 2025

Decision date:

30 June 2025

Jurisdiction:

Common Law

Before:

Yehia J

Decision:

(1)   Mr Dominic Saliba is sentenced to an aggregate term of imprisonment of 7 years and 9 months, commencing on 22 April 2023 and expiring on 21 January 2031. I fix a non-parole period of 4 years and 3 months’ imprisonment. Mr Saliba will be first eligible for release to parole on 21 July 2027.

(2) In compliance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), I note that the provisions of that Act have potential application to the offender. I direct that the offender’s legal representatives advise him of the existence of the Act and its application to this offence.

Catchwords:

CRIME – Sentence – Judge alone trial – not guilty of murder but guilty of manslaughter – fatal stab wound to the chest – cousins – where the offender and the deceased were slapboxing and “mucking around” minutes before the fatal stabbing – where the offender’s anger escalated quickly “zero from a hundred” – no planning – youth – sexual assault as a child – Bugmy Bar Book “Childhood Sexual Abuse” – mental health condition of PTSD – reduced moral culpability – guarded prospects of rehabilitation – little acceptance of responsibility – offer to plead guilty to manslaughter rejected

Legislation Cited:

Crimes Act 1900 (NSW), s 18(1)(b)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A(2)(b), 21A(2)(c), 21A(2)(eb), 21A(2)(j), 21A(3)(i), 25E(1), 25E(3)(a), 30E(3), 53A

Criminal Procedure Act 1986 (NSW), s 166

Firearms Act 1996 (NSW), ss 4(1), 7A(1)

Cases Cited:

BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159

Callaghan v R (2006) 160 A Crim R 145; [2006] NSWCCA 58

Davidson v R (2022) 300 A Crim R 214; [2022] NSWCCA 153

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Edquist-Wheeler v R [2024] NSWCCA 49

Goundar v R [2012] NSWCCA 87

Hutchen v R [2015] NSWCCA 101

Imbornone v R [2017] NSWCCA 144

Ith v R [2013] NSWCCA 280

Jibran v R [2020] NSWCCA 86

Jonson v R (2016) 263 A Crim R 268; [2016] NSWCCA 286

KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51

Lloyd v R [2022] NSWCCA 18

Maroun Younes v R [2012] NSWCCA 259

Martino v The King [2024] NSWCCA 93

Mattiussi v R [2023] NSWCCA 289

NK v R [2025] NSWCCA 73

Park v The Queen (2020) 282 A Crim R 551; [2020] NSWCCA 90

R v AGR (Court of Criminal Appeal, 24 July 1998, unrep)

R v Chami [1999] NSWSC 1268

R v Dawes [2004] NSWCCA 363

R v Edwards (1996) 90 A Crim R 510

R v Elliott (2006) 68 NSWLR 1; [2006] NSWCCA 305

R v Hamshere [2005] NSWSC 1319

R vHearne (2001) 124 A Crim R 451; [2001] NSWCCA 37

R v Hoerler (2004) 147 A Crim R 520; [2004] NSWCCA 184

R v Ian Kennedy [2008] NSWSC 703

R v Jim Mills [2009] NSWSC 521

R v Justin West [2011] NSWCCA 91

R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120

R v McDonald [2019] NSWSC 858

R v McDonald (Court of Criminal Appeal (NSW), 12 December 1995, unrep)

R v Nancarrow [2022] NSWSC 455

R v Price [2016] NSWCCA 50

R v Qutami (2001) A Crim R 369; [2001] NSWCCA 353

R v Saliba (No 3) [2025] NSWSC 296

R v Slade [2005] 2 NZLR 526

R v Wang [2016] NSWSC 222

R v White [2025] NSWSC 243

R v Wood (2014) 244 A Crim R 501; [2014] NSWCCA 184

RG v R [2025] NSWCCA 36

Wilson v R [2025] NSWCCA 86

Texts Cited:

The Bugmy Bar Book, Childhood Sexual Abuse

Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, 2017) vol 4

Category:

Sentence

Parties:

Rex (Crown)
Dominic Saliba (Offender)

Representation:

Counsel:
R Kotsis (Crown)
R Khalilizadeh (Defendant)

Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Hugo Law Group (Defendant)

File Number(s):

2022/00386498

Publication restriction:

Nil

JUDGMENT

1. On the evening of 9 December 2022, Mr Saliba ("the offender") stabbed Bailey Jones ("the deceased") in the upper chest at Bomaderry in the State of New South Wales. Mr Jones died shortly after. Mr Jones was 18 years old at the time. Mr Saliba was 20 years old. They were cousins.

2. On 18 December 2024, Mr Saliba was arraigned on an indictment containing a single count that he, on 9 December 2022, at Bomaderry in the State of New South Wales, did murder Bailey Jones. He entered a plea of not guilty to that charge. The matter was set down for trial on 11 March 2025.

3. The trial proceeded before me as a judge alone trial. The evidence concluded on 25 March 2025. The closing addresses proceeded on 26 March 2025. On 2 April 2025, I returned verdicts of not guilty of murder but guilty of manslaughter.

4. Mr Saliba must now be sentenced for manslaughter, an offence contrary to s 18(1)(b) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years’ imprisonment. A standard non-parole period does not apply to this offence.

5. Mr Saliba offered to plead guilty to manslaughter in the Local Court. That offer was rejected. The Crown accepts that having offered to plead guilty to manslaughter on 20 November 2023 prior to committal for trial, the offender is entitled to a 25% discount by virtue of ss 25E(1) and 25E(3)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSPA"). I will apply a 25% discount in sentencing Mr Saliba.

6. Eight victim impact statements were tendered. The victim impact statements of the deceased’s biological parents, his step-parents and his older brother were read in court. The killing of Mr Jones has resulted in deep and ongoing grief not only for his immediate family members but his extended family and friends. He was a young man who had his whole life before him. He had discussed finishing his apprenticeship and his aspirations to buy property, marry and become a father.

7. He was “an amazing football player”, a loving, kind and funny young man, and close to his family, particularly his mother.

8. A great deal of trauma, upset and anger has flowed from the offender’s act, resulting in the death of Mr Jones. That trauma will have long lasting impact although the Court hopes that with the passage of time, those affected by the killing will find comfort in their personal and familial relationships.

9. I have had regard to the victim impact statements pursuant to s 30E(3) of the CSPA.

10. In R v White [2025] NSWSC 243, Harrison CJ at CL relevantly observed as follows:

“[13] … It is usual and perfectly understandable that many people will have an interest in the result of any sentencing proceedings and not merely the offender awaiting sentence. People other than those who are directly involved in the events that give rise to the relevant offence, such as an accused, often have and forcefully express a desire to follow what happens in court. These include, as in this case, relatives and friends of the deceased, whose position as victims is expressly recognised by statute. Further, and more generally, complete strangers to the proceedings, such as members of the general population and the local community, and often in large numbers, although only affected indirectly, nevertheless remain vicariously invested in the due administration of the criminal justice system. These individuals are entitled to a clear explanation of what happens to an accused person, or what sentence is imposed and why. These different roles are not necessarily mutually exclusive.

[14] Sentencing is a complex and complicated task. It is not designed to be so. It is not intended to vex the uninitiated. But unlike theatrical or cinematic representations of this aspect of the criminal law, sentences in this country are not handed down without giving due consideration to a very large number of important and often contradictory themes. …”.

11. It is appropriate to commence these remarks by acknowledging the life lost. In matters such as this, judges are asked to perform an impossible equation. No human life can ever be equated with any penalty, including a period of imprisonment. No gaol term, of any length, can return a loved one. A life should never be measured simply by the punishment meted out to an offender.

12. The sentence I impose does not, and cannot, measure the value of Mr Jones’ life. Instead, it reflects the sentencing discretion informed by proper principle. It must reflect adequate punishment, deterrence, and denunciation, in addition to rehabilitation and protection of the community. It must hold the offender to account and reflect the objective seriousness of the offence. It must also reflect the offender's subjective case, his moral culpability, his prospects of rehabilitation, and the likelihood, or unlikelihood, of future offending.

13. The purposes of sentencing require that the offender be punished and held to account for his actions. He will be sentenced to a term of imprisonment. The offender’s sentence to a term of full-time custody goes a long way to fulfilling those purposes. Punishment is not, however, the only purpose of sentencing. This is a tragic case where the deceased’s senseless death was occasioned by his own cousin. The offender will have to live with that burden for the rest of his life. In many ways, that burden, far more than imprisonment, will be the offender’s punishment.

14. In addition to the offence of manslaughter, the offender will also be sentenced for an offence of possession of an unauthorised firearm contrary to s 7A(1) of the Firearms Act 1996 (NSW). The offence carries a maximum penalty of 5 years’ imprisonment. A standard non-parole period does not apply to this offence. The Local Court jurisdictional maximum penalty for this offence (which is applicable here) is 2 years’ imprisonment.

15. On 28 April 2025, the offender entered a plea of guilty to that offence at the Nowra Local Court and the offence was referred to the Supreme Court on a s 166 certificate as a “related offence”, pursuant to the Criminal Procedure Act 1986 (NSW). In respect of this offence, it is accepted that a 25% discount applies to reflect the utilitarian value of the plea.

Facts as to the basis for manslaughter

16. My analysis of the Crown case, the basis of liability for the offence, and the reasons for my verdicts are contained in my verdict judgment: R v Saliba (No 3) [2025] NSWSC 296.

17. I proceed to sentence the offender on the following facts.

18. The offender and the deceased were cousins. The deceased was about two years younger than the offender. In the months leading up to 9 December 2022, they had a close relationship and spent time together at the offender’s home. I accept the offender thought of his cousin as his best friend. Each had introduced the other to various young men, who became part of their friendship circle. Some of those young men were present at the offender’s home on 9 December 2022 and were called to give evidence in the trial.

19. The group of young men got together on occasion at the offender’s home where they would sit in the garage, “chill out”, listen to music, drink alcohol or smoke cannabis or both.

20. I am satisfied that one of the ways in which they interacted with each other was by play fighting or slapboxing. This practice involved physical slaps or kicks that were engaged in as a form of “mucking around” or joking with each other. Whilst to some, this form of bonding may seem peculiar, I am satisfied that there was nothing sinister about the behaviour and that it was done in fun.

21. 9 December 2022 was a perfectly normal day in which the offender and the deceased and their group of friends were going to engage in the normal activity of meeting up at the offender’s home. As it transpired however, there was nothing at all normal about that day. In the early evening, Bailey Jones sustained a serious wound that caused his death.

22. A number of conversations between the offender and others were captured by way of electronic surveillance. Relevantly, they contain assertions by the offender that he stabbed the deceased. There is a detailed analysis of the representations in the verdict judgment. I rejected the offender’s evidence that the representations were untruthful or simply an expression of bravado. Instead, I am satisfied that the representations made by the offender were truthful. The representations of particular relevance to these proceedings include the following:

1. “I fucked up”.

2. “I flipped the switch”.

3. “I jabbed him” – a reference to the offender’s act in causing the fatal wound. The representation was accompanied by gestures which were described in the trial by Mr Elfverson.

4. “Everything just fucken went south hard… Everything just went completely wrong”. “Yeah, just without thinking hey?” “You don’t think you just (IND)”.

5. “Yeah but I don't even let myself, like, I ca, don't, I don't get to that point. It's just instant”. “… It’s like zero from a hundred”. “Yeah, but that didn’t… Didn’t go through my brain at that point”.

6. “Yeah (IND) I just went (slap sound, slap sound) and he went ahhh, ahhh and he’s like you got me”.

7. “But I just flipped it like when I shouldn’t have”. “I wish someone like just, had that chance to say, Dom what are you doing? Before like, saw me switch. Like you could see me switch”.

23. It is difficult to determine, with any certainty, the precise movements of the offender and the deceased at the time the fatal injury was inflicted. For example, I am unable to determine the order of the wounds. I am unable to determine the precise movement of the deceased at the time he sustained the fatal wound, other than to say that he did not advance on the knife.

24. The offender and the deceased were slapboxing in the garage. This was a form of playful fighting where each slapped the other. The pair were “mucking around” with each other, perhaps testing each other. There was also some banter about who owned which canister. The deceased was quicker than the offender and managed to pick up a canister from the table in the garage. He dropped it. The offender picked it up, moving into the kitchen.

25. The offender was not angry and appeared normal when he went from the garage into the kitchen. Seconds later the deceased followed the offender into the house. The offender went into his bedroom and took possession of the knife (Exhibit J in the trial). At the time the offender took possession of the knife, he did not have an intention to stab or injure the deceased. It is more likely, in my view, that the offender took possession of the knife to assert control and to obtain the upper hand in his interaction with the deceased. I also observe that a state of anger does not equate, necessarily, with an intention to inflict grievous, even serious, bodily harm.

26. The offender returned to the kitchen and moved to the position in front of the deceased, as indicated by the offender in the diagram (Exhibit 3 in the trial). As can be seen from the offender’s markings on that floor plan, the offender came out of the bedroom and walked past the kitchen bench to a position facing the deceased. The deceased walked into the kitchen and to the vicinity of about the middle of the kitchen bench.

27. I accept that the offender perceived that the deceased was shaping up. The offender said so in the recorded conversations at a time when the Crown (at trial) invited me to accept that what he said was truthful.

28. However, I do not accept that the deceased threw a punch at the offender, causing him to step backwards. It is difficult to determine with precision, the point at which the “mucking around” or “playful fighting” escalated to anger on the part of the offender. It was likely at the point when he perceived that the deceased was shaping up to him.

29. The offender became angry, stabbing the deceased, and causing the fatal injury. This was a deliberate act on the part of the offender. Having found the offender not guilty of murder, I am not satisfied that at the time he perpetrated that deliberate act that he had an intention to kill or cause grievous bodily harm to the deceased. I reject the Crown’s submission (CWS at [7(m)]) that the offender’s intention at the time of stabbing was to cause the deceased serious bodily harm. The basis upon which I found him guilty was that he committed an unlawful and dangerous act. The dangerousness of the act is reflected in the fact that the deceased was stabbed in his chest which posed an obvious danger and jeopardised the deceased’s life. Beyond that, I do not make a finding that at the time of the stabbing the offender formed an intention to cause the deceased serious bodily harm.

30. This was an incident that escalated over a short period of a few minutes. Immediately prior to the infliction of the fatal wound, the offender and the deceased were “mucking around” with each other, laughing and joking. The evidence establishes that in the months leading up to 9 December 2022, they did have a close relationship. That the offender did not comprehend the extent of the injury, is, in my view, demonstrated by his immediate reaction afterwards. Although he had the presence of mind to lie to protect himself, his distress was genuine as was his concern for his cousin. This does not sit comfortably with an intention to cause serious bodily harm moments before.

31. In the verdict judgment I set out the reasons why the Crown excluded self-defence beyond reasonable doubt. For the purpose of sentencing, I am not satisfied, on a balance of probabilities, that the offender acted as he did, believing that it was necessary to do so to protect himself. I find that the offender’s perception that the deceased shaped up to him gave rise to an instantaneous surge of anger (“zero from a hundred”) in which the offender stabbed the deceased, but not intending to cause serious bodily harm.

Objective Seriousness – Manslaughter

32. There is no category of manslaughter that is to be considered more or less serious than others, however, it is important to identify with clarity, the basis upon which an offender is to be sentenced: Davidson v R (2022) 300 A Crim R 214; [2022] NSWCCA 153 at [204] per N Adams J.

33. The circumstances giving rise to a manslaughter offence are so varied that the penalties imposed in other cases are of little assistance: see R v Hoerler (2004) 147 A Crim R 520; [2004] NSWCCA 184 at [88] (per Adams J); R v Wood (2014) 244 A Crim R 501; [2014] NSWCCA 184 at [56] (Price, Garling and Bellew JJ); R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120 at [193], [227] (Bathurst CJ, Johnson and R A Hulme JJ); Goundar v R [2012] NSWCCA 87 at [42]-[44] (per R A Hulme J).

34. Sentences imposed for the offence of manslaughter must reflect the fact that there has been a felonious taking of human life: R v Dawes [2004] NSWCCA 363 at [32] (per Dunford J); R v Edwards (1996) 90 A Crim R 510 at 517 (per Gleeson CJ); R v McDonald (Court of Criminal Appeal (NSW), 12 December 1995, unrep).

35. In determining the objective seriousness of the offence of manslaughter I have had regard to the following factors:

1. The offending constitutes a domestic violence offence. The deceased was the offender’s cousin.

2. The violence was a significant escalation of what was occurring in the garage by way of jovial slapboxing. However, the offence was unplanned. While there was some deliberation involved in the offender deliberately retrieving the knife from his bedroom, the time involved in retrieving the knife was very brief and the distance between his bedroom and the kitchen/lounge room area was very short.

3. The fatal stab wound, which was the result of the offender’s deliberate act, was between 85 and 90 mm in length. I have also had regard to the fact that the stab wound was to the deceased’s chest.

4. The force required to inflict the fatal wound was not significant or substantial.

5. The fatal stabbing took place in a very short period of time, probably a matter of seconds.

6. The deceased was unarmed.

36. I do not accept the Crown’s submission that the age of the deceased is a matter to which weight should attach in assessing objective seriousness. The relevant factors that relate to the deceased are that he was unarmed and did not present a threat to the offender.

36. In terms of aggravating factors, I have had regard to the fact that the offence involved the actual use of a weapon, namely a large knife: s 21A(2)(c) of the CSPA.

37. Section 21A(2)(eb) of the CSPA provides that where an offence was committed in the home of the victim “or any other person”, it may constitute an aggravating factor. In Jonson v R (2016) 263 A Crim R 268; [2016] NSWCCA 286, Bathurst CJ (with whom Beazley P, Hall, Bellew, and N Adams JJ agreed) said:

“[40] I have set out the text of s 21A(2)(eb) of the Sentencing Procedure Act above. There are two things to note. First, the section in its terms does not impose as a pre-condition for its operation that the offender be an intruder into the victim’s home. Second, the aggravating factor is not limited to the home of the victim but extends to the home of any other person. On a literal construction, this could, hardly surprisingly, include the offender’s home. It seems to me that, in those circumstances, the legislator did not intend that the operation of the section was limited to circumstances where the offender was an intruder either in the victim’s home or some other home.

[41] That construction promotes the purpose of the section, namely, that a home is a place which should be safe and secure for persons who reside, or are otherwise present, at such a place. Thus, it would extend to persons (for example, children) visiting a relative’s home or, for that matter, persons in a domestic relationship at the home of the offender.”

39. I take into account, therefore, as an aggravating factor, that the offence was committed in the home of the offender.

40. I reject the Crown’s submission that a further aggravating factor is the actual or threatened use of violence: s 21A(2)(b) of the CSPA. In the circumstances of this case, where the single act causing death involved an act of violence, it would be inappropriate, in my view, to take into account as a separate aggravating factor the use of violence by the offender.

41. The Crown also relies upon the fact that the offender was on conditional liberty at the time of the offence as a further aggravating factor. While this is an aggravating factor pursuant to s 21A(2)(j) of the CSPA, it is not relevant to an assessment of the objective seriousness of the offence. I will deal with the fact that the offender committed the offence whilst on conditional liberty at a later stage of these remarks.

42. The unlawful and dangerous act perpetrated by the offender is objectively serious. Although the offence was unplanned it did involve the use of a weapon to stab the deceased in circumstances where the deceased did not present as a threat to the offender.

43. In the course of oral submissions, the Crown characterised the offence as “extraordinarily serious”. There is no doubt that this is a serious offence involving as it did the stabbing of a young man causing his death. However, the use of the adverb “extraordinarily” is not appropriate in the circumstances of this case. The stabbing, whilst it was committed in a moment of anger and occasioned catastrophic injury, was committed without planning. The offence did not involve organisation. The attack was not sustained.

44. The parties have not urged a finding of the objective seriousness of the offending by reference to a notional range of seriousness. It is accepted that such a characterisation is not necessary. To the extent that it makes it easier to understand the finding in this case, having considered the nature of the act and the circumstances of the offending, I am satisfied that the offence falls just below the middle of the range of objective seriousness.

Facts – Possession of Firearm (s 166 Certificate)

Facts on Sentence

45. The facts pertaining to the offence of possession of a firearm are agreed. On 9 December 2022, the police attended the offender’s premises following several 000 calls being made in relation to the stabbing of Mr Jones.

46. During the examination of the crime scene, officers located a .303 rifle that had been partially spray-painted, in the roof cavity of the property. CCTV footage later seized by police officers captures the offender handling and spray-painting the rifle in the enclosed front yard area of the address on the afternoon of 9 December 2022. At times, the rifle was left unattended in the yard.

47. The .303 rifle is a firearm as defined in s 4(1) of the Firearms Act. The offender was not the holder of a firearms licence or permit authorising the possession or use of firearms. The rifle was not registered on 9 December 2022.

48. The possession of an unregistered firearm, in circumstances where the possessor does not hold a firearms licence or permit, and where the firearm is in working order, is a serious matter. However, there is no evidence that the offender was in possession of ammunition that could be used in connection with the firearm. There is no evidence as to how long the offender had been in possession of the firearm or the use, if any, to which the firearm would be put. Although there is evidence that the offender had handled the firearm, he did so in the context of spray-painting it.

49. I cannot make a finding beyond reasonable doubt that the firearm was intended to be used in connection with illegal activity. I am also unable to make a finding in relation to the length of time that the firearm was possessed by the offender.

50. I make a finding that the offence falls well below the middle of the range of objective seriousness.

Subjective Circumstances

51. On 13 May 2022, the offender appeared before the Sydney District Court to be sentenced for an offence of armed robbery. The offender was sentenced to 2 years’ imprisonment to be served by way of an Intensive Correction Order (ICO). The subject offences were therefore committed while subject to conditional liberty. This is an aggravating factor pursuant to s 21A(2)(j) of the CSPA.

52. The offender has been in custody since 22 December 2022. Part of the time the offender has spent in custody is referable to the revocation of the ICO. The State Parole Authority revoked the ICO and imposed a fixed sentence of 1 year, 5 months and 4 days, commencing on 22 December 2022 and expiring on 25 May 2024.

53. The offender relies upon a number of documents in support of his subjective case. Dr Sathish Dayalan, forensic psychiatrist, prepared a report dated 10 June 2025. It is appropriate to commence with the contents of that report.

54. The offender had a stable home environment during his childhood. He shares a good relationship with his parents. There was no history of exposure to domestic violence or substance abuse. He also shares a close relationship with his older brother.

55. The offender’s mother and sister-in-law have provided letters to the Court demonstrating their support for the offender. They have shared their observations and experiences of the offender. Clearly, the offender has strong family supports.

56. It was whilst at school, in year 9, that the offender reported experiencing an incident that has been referred to during the proceedings as the “year 9 incident”. That course was adopted by both Counsel in order to apply a trauma-informed approach to the evidence and the submissions relating to the evidence. I will, in the course of delivering these remarks, refer to the incident as the year 9 incident.

57. The offender reported that he was groomed by one of his teachers who subsequently sexually assaulted him. He was traumatised by the experience and experienced shame, resulting in nondisclosure of the abuse. His parents remain unaware of the traumatic experience. However, it was observed that the offender became socially withdrawn and increasingly refused to go to school. His academic performance declined. In year 10, his school attendance was only 2%. The offender commenced using cannabis and it is opined that he did so to reduce his trauma related symptoms.

58. Up until that time the offender had performed well academically and had a good circle of friends. There were no behavioural problems in primary school. After leaving school the offender assisted his mother in the family cleaning business. He also worked in concreting; his longest job lasted no more than six months.

59. The offender reported a history of nightmares and dissociative flashbacks relating to the sexual assault he reported. He experienced fluctuation in mood and in his teenage years he made a suicide attempt by hanging.

60. The offender reported long-standing problems with sleep, hypervigilance in certain situations, and difficulty in controlling his temper and being able to concentrate.

61. At the age of 19, the offender was diagnosed with stage 4 Hodgkin’s Lymphoma. He was hospitalised for a few months and underwent extensive chemotherapy. The side effects included loss of hair and loss of muscle mass. There were also psychological symptoms including feeling depressed when he was in hospital. The treatment resulted in remission of the cancer although the offender continued to attend regular check-ups for early detection of any relapse of the cancer.

62. The offender commenced drinking alcohol at the age of 13-14. His cannabis use commenced at about the same age. When he was 16 years old, he started using cocaine, MDMA, Xanax, and amphetamine. He reported taking drugs to “forget about your surroundings…forget about everything that is on your mind…forget about everything and have fun”.

63. Dr Dayalan opined that the offender had been traumatised by the sexual assault he experienced in his early teenage years. There has been a marked change in his presentation following the assault and he has engaged in avoidant behaviour. A sense of shame and self-blaming in relation to the sexual assault deterred him from disclosing the abuse and seeking specific treatment.

64. He has a history of intrusion symptoms such as nightmares and flashbacks. He presented with depressive and anxiety symptoms in his teenage years including an attempt at suicide. Long-standing problems with self-esteem and a sense of shame were noted.

65. Dr Dayalan opined that the offender suffers from post-traumatic stress disorder (PTSD). The diagnosis of advanced stage cancer at a young age resulted in the worsening of his depressive and anxiety symptoms. The adverse effects of chemotherapy further adversely affected his mental well-being. It is opined that given his young age and underlying psychiatric condition, the increased distress had manifested as emotional and behavioural dysregulation whilst in the hospital receiving treatment for the cancer.

66. The offender’s pattern of substance use supports a diagnosis of substance use disorder. There is a strong correlation between the diagnosis of PTSD and substance use disorder in scientific literature. Dr Dayalan states that the offender’s reasoning for the use of substances suggests that his substance use disorder is largely secondary to the PTSD.

67. Around the time of the offence, the offender was not taking any prescribed medication. He had been consuming illicit substances including smoking cannabis and snorting cocaine daily. He had continued to experience nightmares and flashbacks of the sexual assault. He continued to experience fluctuations in his mood and have problems with sleep and concentration. He acknowledged increased startle response, hypervigilance, and irritability.

68. The offender reported that at the time of the offence he probably got startled and reacted aggressively to a perceived threat from the victim. He remarked, “we had been mucking around…it shouldn’t have happened…I can’t remember…it happened so quickly…the only thing I remember is doing CPR to help him survive”.

69. The offender stated that the deceased was his “best friend” and told Dr Dayalan, “I feel shit…none of that should have happened…I feel guilty…he was my best friend…he would look up to me…me and him were the closest in the family”.

70. I pause here to address the competing submissions made in relation to aspects of the offender’s subjective case. The Crown submitted that the Court would be cautious in its approach to the offender’s report about the year 9 incident and that ultimately, I would reject that account and, therefore, the diagnosis of PTSD, given that the diagnosis is based upon the reported incident.

71. The Crown pointed to a number of factors in support of that contention. Firstly, the lack of detail about the incident. Secondly, the nondisclosure and absence of complaint. Thirdly, the offender’s lack of credibility and reliability given the inconsistencies in the history reported by him about, for example, his use of illicit drugs and being the victim of bullying. Furthermore, the Crown contended that the offender’s credibility is undermined given the rejection of his account at trial.

72. The Crown relied on R v Qutami (2001) A Crim R 369; [2001] NSWCCA 353 and Imbornone v R [2017] NSWCCA 144, in support of the submission that “very considerable caution” should be exercised in relying upon statements made by a prisoner to a psychiatrist or a psychologist when the prisoner does not give evidence.

73. In Lloyd v R [2022] NSWCCA 18, McCallum JA (at [45]) (Hamill and Cavanagh JJ agreeing) stated that the general observation in R v Qutami is:

“…sometimes mistaken for a principle. It is not. If it were, it would be a wrong principle which required correction. Leaving aside the fact that the rules of evidence do not apply to proceedings on sentence unless the court so directs, the weight to be given to particular kinds of evidence in such proceedings cannot be pre-empted as a matter of principle. The weight and cogency of the evidence is always a matter for the individual assessment of the sentencing judge.”

74. I am also of the view that the general observation expressed in R v Qutami is not a statement of principle. What I must determine is whether, on the totality of the evidence, the offender has established the necessary matters on the balance of probabilities.

75. In RG v R [2025] NSWCCA 36 at [78] and NK v R [2025] NSWCCA 73 at [122] I referred to R v AGR (Court of Criminal Appeal, 24 July 1998, unrep) and summarised the principles relevant to a consideration of a history of sexual assault/abuse as follows:

“(i) Firstly, for a history of childhood abuse to be taken into account as reducing an offender’s moral culpability for his acts, an offender must establish on a balance of probabilities the fact of the abuse.

(ii) Secondly, an offender must establish on a balance of probabilities that the history of abuse was a contributing factor in the offender’s own offending conduct (emphasis added).

(iii) Thirdly, a history of sexual abuse will not automatically lead to reduction of sentence. The important consideration is the consequences which flow from the earlier events.

(iv) Fourthly, the weight which should be given to the history of sexual abuse will depend very much on the facts of the individual case.”

76. In considering the evidence and making a determination about this issue, I place very little weight on the lack of detail and absence of complaint. In the Royal Commission into Institutional Responses to Child Sexual Abuse, it was found that:

“Many victims do not disclose child sexual abuse until many years after the abuse occurred, often when they are well into adulthood…Some victims never disclose.

…

One of the most common barriers to disclosure we heard about in private sessions, which is also supported by research, was shame or embarrassment. These feelings can overwhelm a victim and have a silencing effect that can last for many years or decades.” [1]

1. Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, 2017) vol 4, at 9-10.

77. More relevantly, the offender has demonstrated a capacity to lie to attain a benefit and I rejected his evidence at trial. In recounting his history of his use of illicit substances and being the victim of bullying, he has been inconsistent, a matter that impacts upon his reliability.

78. In these circumstances, caution must be taken when determining the veracity of the offender’s report to the psychiatrist. However, the offender’s account does not stand by itself. True it is that there were no witnesses to the incident, which is unsurprising given the nature of the incident, but there is other material that supports the account.

79. Firstly, the offender’s mother reported to Dr Dayalan that the offender had been a happy and social child in primary school with a lot of friends. She recalled that he became “quite inward” at some stage in high school. He refused to attend school and provided no reasons. She recalled that the offender became more irritable around the time he stopped attending school. He had not experienced problems with sleep in early childhood, but he struggled to sleep in his teenage years. His concentration worsened. He presented with anxiety and depressive symptoms even prior to his cancer diagnosis. The offender’s mother was not sure of the factors contributing to his mood symptoms because the offender did not talk about his emotions or problems with family members.

80. This evidence is compelling because the offender’s mother reported these observations, unaware of the matters relating to the year 9 incident.

81. Secondly, the offender reported to Dr Dayalan that he commenced drinking alcohol and using cannabis from the age of 13-14. Dr Richard Furst’s report dated 16 March 2022 (prepared for the sentence proceedings in relation to the prior offence of armed robbery) records the history given by the offender in relation to his drug and alcohol use. On that occasion the offender reported that he drank alcohol and smoked cannabis from the age of 12-13. While there is some inconsistency, it is not significant. The offender was either 12-13 or 13-14 when he started drinking alcohol and smoking cannabis. There is no evidence as to how old the offender was in year 9. He may have been 14 years of age, but I have insufficient material to make a finding.

82. What is consistent is the offender’s report that he commenced using more potent illicit substances from either the age of 15 or 16. The commencement of the use of illicit substances such as MDMA, cocaine and amphetamine likely post-dated the year 9 incident and is consistent with the proposition that the use of these illicit substances is related to the PTSD that developed following the year 9 incident.

83. Thirdly, Dr Furst refers to the offender’s history of emotional dysregulation, temperamental problems and attitude that pre-date the onset of his physical illness and subsequent diagnosis of Hodgkin’s Lymphoma in May 2021. Although his behaviour following the diagnosis demonstrates oppositional attitudes, those behaviours existed during his school years. Dr Dayalan also refers to these behavioural issues pre-dating the offender’s diagnosis of Hodgkin’s Lymphoma.

84. Fourthly, there is evidence that the offender has commenced a personal injury claim for damages arising from the year 9 incident, albeit that those proceedings are at a very early stage.

85. Having reviewed and reflected on the material and, bearing in mind that the standard of proof is not beyond reasonable doubt, I am satisfied on all of the evidence and to the requisite standard (on a balance of probabilities), that the year 9 incident took place and therefore accept the diagnosis of PTSD.

86. In Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”), McClellan CJ at CL summarised the principles to be applied in sentencing where an offender is suffering mental health conditions at [177] as follows:

“● Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 – 51; Israil at [22]; Pearson at [42]; Henry at [28].

● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

● Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].”

87. Dr Dayalan states that the increased arousal of the autonomic nervous system in PTSD results in heightened perception of threat and response to perceived threat as evident from symptoms such as hypervigilance and exaggerated startle response. Dr Dayalan opines that the heightened threat perception and reactivity attributable to PTSD, played an important contributory role in the offending behaviour.

88. As indicated in my verdict judgment, the Crown negatived self-defence. Although I accepted that the offender perceived the deceased to shape up to him, I am not satisfied, even on a balance of probabilities, that the offender believed that he had to do what he did to protect himself. Instead, I am satisfied that the offender’s conduct was born of his anger which escalated quickly in circumstances where, only minutes before, he was “mucking around” and joking with the deceased. The escalation of anger in this way is consistent with the offender’s impaired capacity to regulate his emotions and control his impulsivity.

89. The offender’s impaired capacity is a product of the PTSD which is underpinned by the trauma caused by the sexual assault he experienced. That trauma also contributed to his use of illicit drugs, such as MDMA, cocaine and amphetamine. The interplay between the trauma, the offender’s mental health condition, and use of illicit substances, is a phenomenon which is well documented in literature.

90. The Bugmy Bar Book chapter titled “Childhood Sexual Abuse” contains research which demonstrates the link between childhood sexual abuse and adverse mental health, social and behavioural issues. The literature reveals consistent associations between child sexual abuse and significant negative mental health effects such as post-traumatic symptoms, aggressive behaviour, and conduct problems. It also results in an increased prevalence in diagnoses of PTSD and the use of illicit substances to deal with the symptoms flowing from PTSD.

91. The offender’s sense of bravado very likely prompted him to take possession of the knife. It is noteworthy that Dr Dayalan opines that the offender’s actions were indicative of his impaired regulation of behaviour and impulsivity which has been recorded in the offender’s health records and to some extent is attributable to his age. His dysregulation and impulsivity, partly the result of his PTSD and partly the result of his youth, materially contributed to his offending conduct.

92. The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age. The weight to be given to the fact of the offender’s youth does not vary depending upon the seriousness of the offence. Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult: KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 at [22]-[26] (per McClellan CJ at CL).

93. In BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159, Hodgson JA held at [5] that although considerations relevant to a person’s youth diminish the closer the offender approaches the age of maturity, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid-twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott (2006) 68 NSWLR 1; [2006] NSWCCA 305 at [127]. As shown by R vHearne (2001) 124 A Crim R 451; [2001] NSWCCA 37, youth may be a material factor in sentencing even a 19 year old for a most serious crime.

94. I am therefore satisfied, by reason of the offender’s youth and mental health that his moral culpability is reduced. The reduction in moral culpability warrants a lesser sentence than would otherwise have been appropriate.

95. A custodial term may also be made more onerous by reason of an offender’s mental health: De La Rosa at [177] (per McClellan CJ at CL).

Remorse

96. Section 21A(3)(i) of the CSPA provides that the Court can take into account as a mitigating factor the remorse shown by the offender for the offence, but only if (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).

97. In oral submissions, the Crown contended that the offender has not accepted responsibility for his actions in respect of the manslaughter and, further, that there is a consistent theme of the offender failing to accept responsibility for his criminal acts, including the previous robbery.

98. I do not accept that there is a consistency in the offender’s failure to accept responsibility for his criminal acts. Indeed, in sentencing the offender for the robbery, O’Brien DCJ found:

“Having observed the offender closely as he gave evidence, I am satisfied that his remorse is genuine and that he has some insight into the impact that his offending has had upon the victim”.

99. The question remains as to whether the offender has demonstrated remorse in respect of the subject offending. I have had the benefit of CCTV footage and other electronic evidence capturing the offender’s reaction and representations immediately following the event. He was deeply distressed when he realised the extent of the injury to his cousin.

100. I acknowledge that regret does not equate to remorse. The offender offered to plead guilty to manslaughter in the Local Court, a matter that would normally demonstrate an acknowledgement of responsibility and an acknowledgement of the loss caused by his actions. However, in this case, the offender gave evidence at trial denying that he caused the act that occasioned death. Instead, the offender gave evidence that it was the deceased who moved into the knife, causing the fatal wound.

101. For the reasons set out in the verdict judgment, that account was untruthful. The offender failed to acknowledge responsibility for his actions. Belatedly, the offender wrote a letter of apology to the Court. The letter was written on 17 June 2025, the day before the sentence proceedings. The letter expresses a deep sense of loss and goes some way, albeit belatedly, in accepting responsibility for his actions.

102. Although I am satisfied that the offender genuinely regrets his actions and is deeply affected by the death of his cousin, there is little evidence of remorse in the way contemplated by s 21A(3)(i).

Purposes of Sentencing

103. Section 3A of the CSPA provides:

3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows—

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

104. I am satisfied that the offender’s mental health condition and relative youth operate to reduce the weight to be afforded to denunciation and general deterrence. However, general deterrence remains a relevant purpose of sentencing because the offender armed himself with a knife and deliberately stabbed the deceased in the chest. The sentence I impose must take into account and reflect general deterrence, at least to some degree.

105. In considering the risk factors associated with recidivism, Dr Dayalan concluded that the offender presents with a moderate level of risk needs. Treatment of his mental health condition and abstinence from substance use will be pivotal to reducing his risk of reoffending.

106. The offender’s criminal history is not extensive. He has one prior conviction for robbery whilst armed with an offensive weapon, committed in September 2021. He was dealt with by way of a two-year ICO.

107. In addition, the offender has had a number of disciplinary matters whilst in custody. The New South Wales Department of Corrective Services “Incident Details”, records a number of occasions where the offender has come under notice for the possession of illicit substances or violent conduct. The Crown’s written submissions include a table of recorded incidents.

108. I have exercised caution in determining the weight to be afforded to this material in light of the fact that, in relation to some of these incidents, there is no record of the offender having been spoken to, asked for information, or punished. However, the material does demonstrate a degree of non-compliance and a continuing need for treatment and counselling in relation to the offender’s underlying issues which include his mental health, substance abuse and anger management.

109. It is of concern that the offender was placed on an ICO only months before he committed the subject offences. On the one hand, the breach of his ICO demonstrates his non-compliance and disregard for court orders. However, the ICO Breach Report states that the offender was engaging appropriately in behaviour change modules and remained generally compliant with his scheduling obligations. He was also compliant with his community service work obligations.

110. While the offender’s behaviour in custody has to be viewed in the context of his youth and behavioural issues arising from his mental health conditions, overall, I have concerns about the offender’s prospects of rehabilitation. He breached the ICO by committing the subject offences. He continued to use illicit substances while subject to the court order. The offender has also engaged in misconduct whilst in custody. The circumstances relating to the manslaughter demonstrate the continuing existence of anger management issues and impairment in controlling emotional regulation.

111. I am not persuaded that the offender has good prospects of rehabilitation and is unlikely to reoffend. Instead, I am guarded about the offender’s prospects of rehabilitation and his risk of reoffending. The extent to which the offender’s prospects improve will depend upon his engagement in treatment and counselling to address his mental health condition, his substance abuse, and his anger management issues. There is some hope given his relatively young age and his very supportive family.

112. In determining the appropriate sentence, specific deterrence and the protection of the community are relevant considerations which I have taken into account. However, I also bear in mind that it is only by facilitating the offender’s rehabilitation in a meaningful way that the protection of the community is enhanced. Rehabilitation remains a relevant and important purpose of sentencing having regard to the offender’s relative youth.

113. The sentence I impose must reflect a proportionate sentence having regard to the objective seriousness of the offence, the offender’s reduced moral culpability, the purposes of sentencing, and the offender’s overall subjective case.

Section 5 Threshold

114. I am satisfied that the s 5 threshold (of the CSPA) is crossed and no penalty other than a term of full-time imprisonment is appropriate. The range of conduct captured by the offence of manslaughter is broad and difficult to place amongst other cases. For this reason, the JIRS sentencing statistics and other cases are of little assistance.

115. Two comparative cases have been referenced in the written submissions relied upon by the offender. In R v Nancarrow [2022] NSWSC 455, the offender was sentenced after trial for murder. The offender was found guilty of manslaughter and sentenced on the basis of an unlawful and dangerous act. The offender had stabbed an associate with a knife causing two sharp force injuries. The fatal wound was to the chest. After the application of a 25% reduction to reflect the utilitarian value of the plea, the offender was sentenced to a term of imprisonment of 7.5 years with a non-parole period of 4 years.

116. In R v McDonald [2019] NSWSC 858, the offender pleaded guilty to manslaughter and was found not guilty of murder at trial. He had stabbed his brother. The amount of force was not significant, and the act was found to be impulsive. The offender had a disadvantaged background and a modest criminal record. Applying a 20% discount, the offender was sentenced to a term of imprisonment of 6 years with a non-parole period of 3 years.

117. The below table sets out the “summary of cases” provided by the Crown.

Case	Facts	Sentence
R v Wang [2016] NSWSC 222	• Stabbing with considerable force. • The offender was found guilty of manslaughter in the alternative to murder. The SJ found that manslaughter was established on the basis of unlawful and dangerous act. • A discount of 17.5% was allowed for the utilitarian value of an earlier offer to plead guilty. • The offender reported a happy childhood. There was nothing to suggest use of illegal drugs. • One prior conviction for driving whilst suspended. He was not on conditional liberty. • The SJ found that the offender was genuinely remorseful, of good character, with good prospects of rehabilitation and no likelihood of reoffending.	6 years 6 months (NPP 4 years 6 months)
R v Hamshere [2005] NSWSC 1319	• The offender retrieved a large black kitchen knife and approached the deceased who was shaping up for a fight. The deceased threw a punch towards the offender. The offender raised his arm (holding the knife) causing the fatal wound to the deceased’s neck. • At arraignment the offender entered a plea of guilty to manslaughter (on the basis of unlawful and dangerous act). The plea was accepted by the Crown. • No prior convictions of any significance. • The SJ found that the offender was unlikely to reoffend, had good prospects of rehabilitation and had shown remorse. • The SJ allowed a discount of 25% for the utilitarian value of the plea.	5 years (NPP 3 years)
R v Chami [1999] NSWSC 1268	• The deceased (34y) was drinking at a hotel. He became involved in an argument with a male (SK). Security staff removed SK and a fight erupted outside between security staff and persons outside. The deceased left the hotel and became involved in a fight with SK. The deceased punched SK and missed. The offender who was friends with SK approached the deceased with a knife and fatally stabbed him once to the chest (60 mm deep). • At arraignment the offender entered a plea of guilty to manslaughter (on the basis of unlawful and dangerous act). The plea was accepted by the Crown. • The SJ found the offence was not premeditated. • This was the offender’s first period of custody. • The SJ accepted the offender’s expression of contrition. • The offender had a stable family background but ran away from home at 15y and became a drug user. • The offender was not using drugs in custody and had a favourable report from a drug and alcohol worker. • The SJ held “there is some hope that the prisoner can be rehabilitated”. • The offender had a limited intellectual capacity. • Special circumstances found.	8 years 6 months (NPP 5 years 6 months)
R v Ian Kennedy [2008] NSWSC 703	• The offender (40y) and deceased (56y) were both drug users. They lived together. • The assault was triggered by a trivial dispute. The offender and deceased were both intoxicated by drugs and alcohol. • The SJ found that “there was no attempt on [the offender’s] part to minimise his actions or to create a scenario where the deceased bore any responsibility for the assault”. • The offender offered to plead guilty to manslaughter at arraignment. The offer was not accepted and the matter proceeded to trial. The offender accepted that he struck the deceased to the head and stabbed him in the back, the combination of which caused the death of the deceased. The offender was found guilty of manslaughter by the jury. • It was common ground that the offender should be sentenced on the basis of unlawful and dangerous act and that the offender did not have a murderous intent due to a combination of his level of intoxication and pre existing brain damage. • The offender was not subject to conditional liberty. • The SJ accepted there was genuine remorse and contrition. • The offender had organic brain damage. The SJ held “the offender assaulted and killed the deceased in an altered mental state which impacted upon his judgement and capacity to control his impulses and to a lesser degree his cognitive capacity by reason of brain damage”. • The offender had a record of prior offences. • The offender’s early years were unstable, with domestic violence in the home. • The SJ held the offender was unlikely to reoffend and that his prospects of rehabilitation were good.	6 years (NPP 4 years)
R v Jim Mills [2009] NSWSC 521	• The offender (40y) and the deceased (44y) were acquainted with one another. • The offender and the deceased became engaged in a heated conversation, followed by a physical altercation, arising from an allegation by the deceased that the offender’s son had stolen drugs from the deceased. The offender fatally stabbed the deceased once to the chest. Both were intoxicated. • The offender plead guilty to manslaughter (unlawful and dangerous act) in the Local Court and a 20% discount was applied. • The offender had a criminal record including convictions for assault and assault occasioning actual bodily harm. • The offender had a history of drug and alcohol usage in his teens. His father was an alcoholic and violent. The offender left home at 15y, living on the streets. • Genuine remorse.	7 years 3 months (NPP 4 years 6 months)
R v Justin West [2011] NSWCCA 91	• Crown appeal allowed by majority. • The respondent was 18y (he had turned 18 only a few months before the offence) and the deceased was 19y. Both had consumed a large amount of alcohol. An argument erupted between them, the cause of which was uncertain. They exchanged punches and ended up on the floor. The respondent grabbed scissors from the kitchen table and fatally stabbed the deceased once to the chest penetrating his heart. • “There is nothing to suggest animosity between the respondent and [the deceased]. Indeed, the opposite appears to have been the case”. • The respondent pleaded guilty to manslaughter (unlawful and dangerous act) and a 25% discount was applied. • The respondent had a criminal history of matters dealt with in the Children’s Court including dishonesty offences and two offences of assault occasioning actual bodily harm for which he received periods of probation, bonds or suspended control orders. He had not been in custody prior to the instant matter. • The respondent was not on conditional liberty. • The respondent’s upbringing was supportive. His parents sought to subject him to appropriate discipline and control. • The respondent was of low intelligence and exhibited learning and behavioural difficulties at school and left in year 9.	SJ – 6 years (NPP 2 years) On appeal – NPP increased to 3 years

118. A consideration of the “comparative cases” provided by the Crown and the offender reveal head sentences of between 5 years’ imprisonment and 8 years and 6 months’ imprisonment. This sample of cases does not provide a range of sentencing within which the present sentence must fall. The cases involve offences of different objective seriousness and different subjective cases. Some factors favour this offender, others do not.

119. However, the “comparative cases” are of some assistance in determining the appropriate sentence in this case.

Special Circumstances

120. A consideration of whether special circumstances exist is not confined to a limited set of criteria. There are several factors that could justify a finding of special circumstances. There is no exhaustive list. The question as to whether such a finding is made will depend upon the circumstances of the individual case.

121. Dr Dayalan states that the offender’s mental state has declined following his incarceration due to the worsening of his PTSD in a correctional setting given the increased exposure to violence and risk of being sexually assaulted. He has experienced ruminations of guilt relating to the offence especially during periods of segregation. He is also anxious about having a relapse of his cancer in circumstances where there is limited access to healthcare within the correctional centre.

122. It is recommended that the offender receive treatment including a trial of antidepressant medication and trauma focused CBT therapy. It is also recommended that he continue with drug substitution programs to reduce the risk of relapse into substance use.

123. I am satisfied that a combination of the offender’s mental health condition and the anxiety he experiences due to the limited access to healthcare within the prison operate to make his experience of custody more onerous.

124. I make a finding of special circumstances for the following combined reasons:

1. This is the first time that the offender is serving a term of full-time imprisonment.

2. The offender’s experience of custody is more onerous.

3. The offender will require a longer than usual additional term to facilitate his rehabilitation in the community.

4. There will be a degree of accumulation on the sentence imposed following the revocation of the ICO.

Sentence

125. As previously outlined, the offender has been in custody since 22 December 2022. Part of the time the offender has spent in custody is referable not only to the manslaughter offence, but also to the revocation of the ICO.

126. The Crown submitted that the sentence should be wholly accumulated upon the period imposed following revocation of the ICO, or if the Court determines that some degree of backdating is necessary, substantially accumulated. The Crown relied on the authorities of Ith v R [2013] NSWCCA 280, Hutchen v R [2015] NSWCCA 101 and Maroun Younes v R [2012] NSWCCA 259.

127. The Court has discretion to backdate the sentence to be partially or wholly concurrent with the time served for the revocation of the ICO: Edquist-Wheeler v R [2024] NSWCCA 49 at [43] (per Sweeney J, Adamson JA and Lonergan J agreeing); Callaghan v R (2006) 160 A Crim R 145; [2006] NSWCCA 58 at [21]-[23] (per Simpson J, James and Hall JJ agreeing); Martino v The King [2024] NSWCCA 93 at [79] (per Chen J, Harrison CJ at CL and Walton J agreeing); Mattiussi v R [2023] NSWCCA 289 at [49] (per R A Hulme AJ, Adamson JA and Button J agreeing).

128. Most recently, in Wilson v R [2025] NSWCCA 86, Dhanji J at [33] (with whom Adamson JA and Weinstein J agreed) reiterated that where, as here, an offender’s custody is referable both to the present offence/s and the earlier sentence (here, the revocation of the ICO), a sentencing judge has a broad discretion as to whether to backdate a sentence, and if so, the extent to which it should be backdated.

129. The ICO Breach Report reveals that the sole reason for the breach was the fact that the offender was charged with the present offending conduct. I have already taken into account as an aggravating factor that the offender was subject to conditional liberty at the time he committed the offences. In these circumstances I exercise my discretion to backdate the present sentence to reflect only partial accumulation on the sentence served for the revocation of the ICO. The partial accumulation adequately reflects the discrete and serious nature of the offending with respect to the armed robbery offence.

130. I am not of the view that the sentence I impose for the offence of manslaughter totally comprehends the criminality of the firearms offence. They are entirely discrete and separate offences. Although the firearms offence falls well below the middle of the range of objective seriousness, it warrants a discrete penalty by way of notional accumulation.

131. I will proceed by way of an aggregate sentence pursuant to s 53A of the CSPA: R v Price [2016] NSWCCA 50 at [76] (per Button J, Gleeson JA and Fagan J agreeing); Park v The Queen (2020) 282 A Crim R 551; [2020] NSWCCA 90 at [102] (per Fullerton J); Jibran v R [2020] NSWCCA 86 at [10] (per Johnson J, Leeming JA and Harrison J agreeing).

132. Having applied a 25% discount for each offence I set out the following indicative sentences:

1. For the offence of manslaughter, I indicate a term of imprisonment of 7 years and 6 months.

2. For the offence of possession of an unauthorised firearm, I indicate a term of imprisonment of 7 months.

133. Pursuant to s 53A of the CSPA, I make the following orders:

1. Mr Dominic Saliba is sentenced to an aggregate term of imprisonment of 7 years and 9 months, commencing on 22 April 2023 and expiring on 21 January 2031. I fix a non-parole period of 4 years and 3 months’ imprisonment. Mr Saliba will be first eligible for release to parole on 21 July 2027.

2. In compliance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), I note that the provisions of that Act have potential application to the offender. I direct that the offender’s legal representatives advise him of the existence of the Act and its application to this offence.

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Endnote

Decision last updated: 30 June 2025