R v Srsa

[2021] NSWSC 924

Supreme Court

New South Wales

Medium Neutral Citation:

R v Srsa [2021] NSWSC 924

Hearing dates:

19 March 2021

Decision date:

30 July 2021

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

The offender is sentenced to a term of imprisonment for a period of 7 years and 10 months, commencing on 10 October 2018 and expiring on 9 August 2026, with a non-parole period of 5 years. The offender will become eligible for release to parole when the non-parole period expires on 9 October 2023.

Catchwords:

SENTENCING – Manslaughter – Substantial impairment – Where offender and deceased in domestic relationship – Where offender had history of being in abusive relationships – Where offender diagnosed with alcohol use disorder – Where offender diagnosed with complex post-traumatic stress disorder – Where offender and deceased intoxicated at time of offence – Whether degree of impairment was more than what was required to activate partial defence of substantial impairment

SENTENCING – Manslaughter – Substantial impairment – Where offender pursued deceased with knife – Where offender called emergency services immediately after offence – Where offender could not remember the act – Whether offender had intention to kill given she could not remember the act – Whether intention to kill established from offender’s call to emergency services

SENTENCING – Manslaughter – Substantial impairment – Where deceased accused offender of being unfaithful – Where deceased withdrew money from offender’s bank account – Where deceased graffitied local pub toilets and offender’s furniture – Where graffiti derogatory in nature – Whether deceased’s actions constituted provocation

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 4, 11

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 4A, 5, 21A, 25, 30E, 44

Crimes Act 1900 (NSW), ss 18, 23A

Cases Cited:

Catley v R [2014] NSWCCA 249

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

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

R v Barbieri [2014] NSWSC 1808

R v Cahill (No 4) [2018] NSWSC 1896

R v Olbrich (1998) 45 NSWLR 538

Tepania v The Queen (2018) 275 A Crim R 233; [2018] NSWCCA 247

Ukropina v R [2016] NSWCCA 277

Ward v The Queen (2006) 166 A Crim R 273; [2006] NSWCCA 321

Category:

Sentence

Parties:

Regina
Lisa Srsa

Representation:

Counsel:
Mr C Taylor (Crown)
Mr N Steel (Offender)

Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Offender)

File Number(s):

2018/00310336

Judgment

1. HIS HONOUR: Lisa Srsa (“the offender”) pleaded guilty in the Local Court to a charge of manslaughter of her partner, Glenn Pedgrift (“the deceased”). The killing occurred on the afternoon of 10 October 2018 near their home at Blacktown.

2. The basis of the plea is manslaughter by reason of substantial impairment pursuant to s 23A of the Crimes Act 1900 (NSW), as it was at the time of the offence. Manslaughter carries a maximum penalty of 25 years imprisonment: s 18(1) of the Crimes Act 1990 (NSW). There is no prescribed standard non-parole period.

The offence

3. In considering the evidence before the court, findings of fact that tend to aggravate the appropriate penalty must be proved beyond reasonable doubt, whereas matters that mitigate the penalty must be proved on the balance of probabilities: R v Olbrich (1998) 45 NSWLR 538 at 543. I also note the following observations by Johnson J in R v Cahill (No 4) [2018] NSWSC 1896, at [16], with whom I respectfully agree:

“It is appropriate to observe, however, that some disputed issues of fact may not be capable of resolution in a way that goes to increase or decrease the sentence that is to be imposed. There may be issues which the material available to the Court will not allow to be resolved in that way: Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at 636 [19]. In addition, it must be recognised that not every matter urged on a sentencing Judge has to be, or can be, fitted into categories of aggravating or mitigating circumstances. The Court may be unpersuaded as to matters urged in mitigation or in aggravation. Of course, the absence of persuasion about a fact in mitigation is not the equivalent of persuasion of the opposite fact in aggravation: Weininger v The Queen at 638 [24].”

4. An agreed statement of facts which was tendered at the sentence hearing is to the following effect.

5. At the time of the offence, the offender and the deceased were aged 50 and 47 respectively and had been in a relationship for about four or five years. They resided at an address in Blacktown I will refer to as “28 Thomson Street” (“Number 28”), which was a house formerly owned by the offender’s late father. Also residing at Number 28 were the offender’s son, who was aged 24, and the offender’s nephew, who was aged 20. The offender’s daughter, aged 21, would visit regularly with her child who at the time of the offence was aged four months (“the offender’s grandson”). The father of the offender’s son and daughter was the offender’s second husband, who also resided there.

Events leading up to the offence

6. The offender and the deceased regularly consumed excessive amounts of alcohol and would argue with one another when intoxicated. Around late September 2018, two weeks before the offence, the arguments escalated. At this time, the arguments concerned “whether the offender had been unfaithful to the deceased”.

7. On 9 October 2018, the day before the offence, the offender’s grandson underwent open heart surgery. The offender and the deceased visited him in hospital after the operation. They were both intoxicated and an argument ensued whilst they were at the hospital. That evening, the offender’s son heard the offender and the deceased yelling at one another at home.

The day of the offence

8. The next day, 10 October 2018, the deceased attended a Hotel in Blacktown (“the Hotel”), where he and the offender were regulars. At around 9am, he purchased five longneck bottles of beer and withdrew $50 from the offender’s bank account.

9. At around 10am, the offender drank a bottle of beer at their home. She completed some household chores and attended a nearby shopping centre. At 12:27pm, while withdrawing money during the shopping trip, she noticed that the deceased had withdrawn money from her account. She later told police that this had angered her. She bought groceries and returned home.

10. At around the same time, staff working at the Hotel discovered graffiti in the men’s toilets, which read: “Lisa’s a slut”, “for a good time call Lisa”, “Lisa’s a dog” and included the offender’s mobile number. The graffiti was extensive, covering the cubicles, the cubicle doors and the mirrors.

11. The deceased, who was still at the Hotel, was confronted by staff. He said that he should not have graffitied the toilets, but that the offender was a “slut” and a “dog”. He said, “you should see my handy work at her place, all over her furniture, walls, doors”. The manager banned him from the Hotel for a month. He then left the premises.

12. Staff at the Hotel called the offender to tell her about the graffiti, which prompted her to attend the Hotel. She was observed by staff to be “drawn and distressed”. She said, “I don’t need this, the baby is waiting to have an operation. I haven’t slept, I haven’t eaten, I feel sick. I’ve got to get the graffiti off”.

13. The offender returned home and confronted the deceased about the graffiti. An argument ensued and escalated to such a point that the offender’s son intervened and told the deceased to leave the home. The deceased obliged.

14. Thomson Street lay approximately North-South, with T-intersections at both ends. The deceased walked North along the Western footpath of Thomson Street. The offender took a steak knife from the kitchen and followed. When the deceased was a few houses down Thomson Street in the vicinity of Number 20, the offender approached and stabbed him once to his chest with the knife. The deceased continued North along the footpath until he reached the front lawn of Number 14, where he called out to some tradespersons who were working nearby.

15. At about 5:10pm, one of those tradespersons heard a female yelling something to the effect of, “get back here” or “come back here”, “you fucking bastard”, along with other swearing and yelling. He then saw the deceased standing on the front lawn of Number 14. The deceased said, “hey bro, come over here”, before collapsing onto the grass. The tradesperson thought the deceased was intoxicated.

16. Another witness, a woman who was working at an accommodation facility located across the street at Number 13, saw the deceased “stumbling along the footpath”, holding a “middy” bottle of beer. The woman heard the deceased say “hey fellas” to some tradespersons before collapsing. She went to check on the deceased immediately.

17. The woman called emergency services at 5:15pm. During the call, the deceased stopped breathing and she commenced CPR, assisted by other members of the public, including the tradesperson. Police arrived at 5:23pm, closely followed by ambulance officers who attended to the deceased, however, he was pronounced dead at the scene.

18. An autopsy report authored by Dr Janse Van Vuuren, dated 14 March 2019, stated that the direct cause of death was a “single stab wound to the left side of the chest that went [through] the left internal artery and terminated in the right ventricle of the heart”.

19. The deceased had a blood alcohol reading (“BAC”) of 0.296 g/100mL. In a report dated 3 October 2019, forensic pharmacologist John Farrer gave an opinion that:

“… irrespective of the deceased’s tolerance to alcohol, his cognitive ability and psychomotor function would have been substantially impaired at the time of his death. The deceased’s ability to make rational decisions would have been significantly [compromised]. The deceased would not have recognised threats to his safety and his ability to defend himself against assault would have been impaired.”

20. A blood trail led from a large pool of blood outside Number 20 to where the deceased had collapsed. The knife, which was 23cm in length with a serrated blade of 10cm, was located near the blood pool. Blood on the knife matched that of the deceased.

The offender’s post-offence conduct

21. After stabbing the deceased, the offender returned to Number 28 and said to her son, “I stabbed him, I stabbed him”.

22. At 5:26pm, the offender contacted Triple Zero and requested emergency services. The Triple Zero call, which was summarised in the agreed facts, was to the following effect. The offender told the Triple Zero operator that the deceased “got a stabbed heart … he’s been stabbed” and that he was “our friend who lives here”. The operator asked the offender where the person who stabbed him was, to which she replied, “I don’t know”. The operator then asked the offender who stabbed the deceased. She again replied that she did not know. When asked her name, the offender gave her maiden name. A voice was recorded in the background, later identified to be the offender’s son, yelling “what have you done, he’s dead”.

23. Police attended Number 28 shortly after and arrested the offender. She had blood on her hands and was affected by alcohol. When asked why she stabbed the deceased, she responded, “I didn’t say I stabbed him, I threw the knife at him”. The offender was conveyed to Blacktown Police Station and placed in custody.

24. The offender’s BAC was 0.142 g/100mL at 12:04am on 11 October 2018. In his report, Mr Farrer opined that the offender’s BAC at the time of the offence was most likely 0.260 g/100mL, falling within a range from 0.200–0.310 g/100mL. A report by forensic pharmacologist Professor MacDonald Christie dated 24 November 2019 which was tendered at the sentence hearing gave a similar opinion, that the offender’s BAC was likely to have been 0.270 g/100mL at the time of the offence, falling within a range from 0.210–0.310 g/100mL.

The interview by police

25. The offender participated in an electronically recorded interview with police in the early hours of 11 October 2018. A summary of the interview was tendered into evidence as part of the agreed facts.

26. The offender said that she and the deceased had been “arguing a lot over the last couple of months” and that the deceased had been calling her “very bad names and accusing me of things I don’t do”. She said the deceased had been “breaking the furniture”.

27. The offender said that, on the day of the offence, she had consumed three or four longneck bottles of beer. Her first drink was at 10am and her last was at about 3 or 4pm. She had not taken any drugs other than “Lexapro” which was prescribed to her for depression and anxiety.

28. The offender told police that she woke up at around 5am on the day of the offence and did some household chores. The deceased went for a walk and she watched television. The deceased returned home and at around 9 or 10am he went to the Hotel, returning with five beers. The offender went out to buy some washing powder and when she returned home, they had an argument. The deceased left the home again. The offender went out to buy meat for dinner, returned home and started cooking. The offender said she could not recall anything after that, but that she “must have had the drinks”.

29. She said that she was cooking and cleaning and preparing to go to the hospital that night to visit her grandson. Her son was “cranky”, because the deceased had been “smashing and bashing and carrying on the night before”. She spoke to her son and nephew “out the back” but could not recall the conversation. She said she did not know where the deceased was.

30. When asked to clarify her movements that day, the offender said she went looking for the deceased at around 10am, found him, took the beers from him that he had bought at the Hotel, and then bought the washing powder and went home. She said she was angry with the deceased and told him not to return home because he had taken money out of her bank account and used it to buy “pot”.

31. The offender said that in the late afternoon she walked to the bottle shop at the Hotel to buy more alcohol and was told about the graffiti by the Hotel staff. She then went home and cooked dinner. She could not recall whether the deceased was home or not. She said she “went looking for him or something, or he’s started something, had words”, because the deceased had graffitied her late father’s furniture at home. In evidence, the offender said that he graffitied the furniture the same day.

32. The offender told police that she could not recall what occurred after she went looking for the deceased. She said she could have phoned the police, but she did not know. She said she did not know why she was being arrested.

33. When asked about the statements she made to police at the scene, namely, that she did not stab the deceased but “threw” the knife at him, she said: “I threw the knife because [the deceased] was carrying on at me as well”. She said she “aimed for [the deceased]” and that she was quite close to him. She confirmed that it was the steak knife that she threw, and when asked where she took it from, she said “it would have been in the kitchen I think”.

34. The offender could not recall phoning Triple Zero. She said that when she got home, she went inside to look for cigarettes and then the police were there.

35. The offender said that the deceased did not try to assault her that afternoon, but that he had been “angry at me for weeks” and “the night before he did assault me a little bit, so I just ignored him”. She said that the assault involved the deceased “throwing beer” on her and “grabbing her hair”.

36. When asked if she stabbed the deceased, the offender stated “why would I stab him with a knife? I don’t even know why I had the knife”. She said she did not “understand why I went walking with the knife” and that she was “petrified” of knives.

Gaol calls made by the offender

37. The offender made telephone calls to family members from gaol between 18 October and 28 December 2018 in which she denied intentionally killing the deceased.

38. On 18 October 2018, she told her daughter that she did not murder the deceased and that the incident was an accident, and on 31 October 2018 that she was “being punished for something that was [an] … accident and he’s caused all of it anyway really”.

39. On 21 and 27 October 2018, the offender told her brother that she could not wait to be released from custody because “it was an accident” and that she felt like she was being punished “for something that was [an] … accident”. She also told her brother that she was beside herself “because [the deceased’s] not going to be there for me no more”. She maintained the incident was an accident in further calls on 7, 9 and 18 November, and on 17 December 2018.

40. On 24 October 2018, the offender told her uncle that the incident was an accident and that she was “not a fucking murderer”. She said that she did not chase the deceased down the street, but “just followed him down a couple of houses”. She later told her uncle, on 28 December 2018, that she missed the deceased and that “it’s just … horrible … what happened was an accident … it’s hard to get your head around it, I think I’m still in shock”.

Victim impact statements

41. Victim impact statements, composed by the deceased’s mother, brother, three sisters and niece were read at the sentence hearing. Glenn Pedgrift was an Indigenous man who grew up in a loving family. Through the statements, he shone through as a loving, mischievous, hard-working son, brother and uncle. On behalf of the Court, I offer my condolences to his family. The witness from the accommodation facility also provided a statement that recorded the traumatic experience of providing first aid to the deceased, and its lasting impact.

42. The Crown has made an application, pursuant to s 30E(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSP Act”), that the victim impact statements of the deceased’s family members be taken into account by the Court in connection with the determination of the punishment for the offence on the basis that the harmful impact of his death on his family is an aspect of harm done to the community. The application was not opposed, and I propose to take the victim impact statements into account in this way.

The offender’s background

43. Reports of three forensic psychiatrists were tendered, each of which contained a history taken from the offender. The reports were by Associate Professor Carolyn Quadrio, dated 14 March 2020; Professor David Greenberg, dated 26 May 2020 and 27 January 2021; and Dr Richard Furst, dated 5 March 2021. The offender gave evidence at the sentence hearing. The picture that emerges of her background from those sources is as follows.

The offender’s family background

44. The offender was born in Seven Hills in 1967 to a father who was Polish by birth and a mother who was of European and Aboriginal descent. She has one surviving sibling, an older brother, with whom she has a good relationship. She had another older sibling, who died soon after birth.

45. At school, the offender had no academic or social difficulties, other than struggling with maths and generally being shy.

46. The offender’s parents had a turbulent relationship, separating for the first time when the offender was 8 years old. Her father drank alcohol excessively until she was around 10 years old and was a strict, violent and controlling presence in the family home. Professor Greenberg reported:

“[The offender] describes her relationship with her father as ‘very strict’ and a ‘good father’. She states that [her father] perpetrated domestic violence ‘all the time’ against her mother but not against his two children. She states that her mother would binge drink alcohol from the age of 35 years old and her father would bash her mother for drinking alcohol. She states the father was very jealous of her mother because her mother was very good-looking. She reports, ‘We loved him’, he was a good provider and worked hard and made sure they had a good schooling. He was the master of the house and what he said went. She reports that if she was cheeky to her father, she would get a smack or be asked to sit in the corner on her knees with her hands up in the air. She recalls she and her cousin were sent to the corner for half an hour and at the time, they thought it was funny … She states, ‘Believe it or not’, she was very close to her father.”

47. The offender’s parents reunited, but then separated again for around a year when the offender was 11 or 12 years old. They then bought a house in Casula, where they lived throughout the offender’s teenage years. The offender attended high school nearby, developing close friendships and coping well with schoolwork. However, she experienced anxiety performing public speaking tasks, which continued into her working life.

48. While the offender was in early high school, her mother started drinking alcohol excessively. This steadily worsened over time, escalating to such a point that the offender’s mother was sent to a “special home” in Campbelltown. She was subsequently treated with electroconvulsive therapy and Valium. The offender noted in an interview with Associate Professor Quadrio that:

“Mum was drinking heavily and the arguments were bad; dad was still violent. Mum went to rehab a few times. She would go without drink for a few weeks and then she would binge. Dad was in control of everything; he didn’t give mum money and he took her shopping so he could control the money. It was sometimes hard to take but … he meant well and he always cared a lot for his two children; he often helped … with schoolwork and so did mum.”

49. Upon leaving school at the end of Year 10, the offender worked in the Public Service in an administrative and secretarial role, whilst also undertaking a typing and clerical course at TAFE. When aged 18, she started working for a local newspaper, initially in various clerical and training roles, and continued in that employment for 25 years.

50. The offender’s parents finally separated when she was in her 20s. Her mother re-partnered with a man she described as “an alcoholic but a good man”.

51. The offender’s parents both died of natural causes in 2012, about 11 months apart, when they were aged about 70. This had a significant impact on the offender; she was “devastated” and told Associate Professor Quadrio that she: “missed them so much; I still do”.

Alleged incident of sexual abuse

52. In 2019, while in custody, the offender disclosed for the first time that between the ages of 10 and 12 years old she was sexually abused by a prominent person with a public profile in her local community. She described the alleged offence in an interview with Dr Furst as follows:

“The alleged perpetrator of the sexual abuse was … a well-known person in the local community … [The offender] said he would take her horse-riding and also took her to a caravan park in the Shoalhaven. [The alleged perpetrator] befriended her parents, who bought his house. One of her close friends was also apparently groomed, exploited and sexually abused by the same man, [the offender] and her friend [decided] to keep things to themselves because they did not think that their parents would believe them and because she was worried it would bring embarrassment upon her family.”

53. The offender said that when she and her friend would go horse riding, this man “rode on the same horse behind her and put his hand on her genitalia”. This allegedly occurred a “few times over a period of a few months”. The offender also went with the man and his family to his caravan park “where he touched her again: ‘It hurt’”.

54. When asked about the psychological effects of the sexual abuse, the offender said that it was: “Always there. I was strong. Got on with life. Very possessive over my children and grandson. I don’t know how it affected me mentally”, and that:

“I was so close to telling my mum … I tried to hurt myself. I thought of cutting my wrists … I had negative images of a lot of bad things that happened.”

The offender’s relationship history

The offender’s first marriage

55. The offender married for the first time in 1989 or 1990, when she was aged 21. Her first husband “gambled and drank” and could be “nasty when he was drinking; he would call her names and push her”. After about two years of marriage, the offender found him in bed with another woman.

56. The offender’s parents arranged for her and her first husband to have couples counselling through their church, but her husband was not interested, so they divorced. She was “heartbroken” and “terribly upset but angry too”.

The offender’s second marriage

57. The offender commenced a relationship with her second husband when she was in her early 20s. They married in 1992 and had two children, in 1994 and 1998.

58. The offender’s father left her a sum of money as part of his estate. With it, she bought her second husband a car and a trailer and paid off his debts. She also gave some money to her second husband’s sister. The offender said that her second husband “went through all the rest of it; there is none left now”.

59. The offender described her second husband to Associate Professor Quadrio as being “very jealous and possessive”. In her report, Associate Professor Quadrio stated:

“… he rang [the offender] constantly. He would come to the office where she worked to check up on her. He became more possessive and suspicious after the babies were born, although she was spending most days with his mother.

[He] spent all his money on things that he wanted; he liked ‘posh’ things and would buy things he couldn’t afford. [The offender] was working and paid the rent and the school fees and [her second husband] didn’t contribute. It was a lot of stress. He began to treat her badly as well; he started pushing her and one time he held her by the throat.

[The offender’s second husband] was always threatening to kill himself, including in front of the children … Recently she has noticed that he treats [the offender’s daughter] the same way, ‘jealous and possessive and checking up on her’.”

60. The offender’s relationship with her second husband ended in 2012 after more than 20 years together, when she learned that he had been unfaithful to her. However, they never formally divorced. There were custody issues with the offender’s children, who were around 13 and 17 years old at the time of the separation. The offender explained the custody issues to Associate Professor Quadrio, who related them in the following terms:

“They agreed on a 50/50 arrangement but it did not work out. [The offender’s second husband] was always trying to turn the children against her; he would tell them that she was an alcoholic; often he wouldn’t let them come to stay with her. She was very distressed by this situation. ‘I just wanted my kids’. She felt that she had always been a good mother. She went to Wollongong and stayed with her (maternal) uncle for five months. She was drinking; she didn’t want to think about anything anymore. She felt like hurting herself: ‘I wanted to be dead’; but then she thought of the kids.”

61. The offender also had trouble sleeping and self-medicated with alcohol, increasing her consumption to four longneck beers per day.

62. In 2012, the offender commenced a relationship with another man, prompting a domestic violence incident in which her second husband went to her father’s home where she was residing, picked her up and threw her onto the floorboards. The offender called police, her husband was charged and an apprehended domestic violence order (“ADVO”) was made against him.

63. The offender’s back was severely injured in the incident, requiring hospitalisation. According to hospital discharge summaries, the incident was witnessed by the offender’s daughter, who was 14 years old at the time.

The offender’s relationship with the deceased

64. The offender’s relationship with the deceased commenced in around 2013. They met at a pub and were “really good friends” for about a year before their relationship commenced. At first, the deceased was “a lot of fun” and “they got on very well”. However, they consumed excessive amounts of alcohol together, and the deceased would “have a couple of cones” of cannabis each morning.

65. Around 2013 or 2014, the offender and the deceased moved in with the deceased’s niece at Quaker’s Hill. This was a positive experience for the offender. A year later, they relocated to Number 28, which was the offender’s late father’s house. The offender’s two children were living in the house at the time, along with the offender’s second husband, reportedly because his “bad record” prevented him from renting a property.

66. The offender and the deceased lived on the first floor, and the offender’s children lived on the second. The offender’s second husband lived in the garage, which had been converted into a living area; however, he also spent some time in the house. The offender’s second husband and the deceased “got on okay … sometimes they would drink together ‘and run me down’”.

67. The living arrangement was intended to be temporary, as the offender had applied for state housing. However, her application did not proceed, reportedly because the deceased would not attend the relevant agency with her.

68. Whilst at Number 28, the deceased became violent towards the offender. Associate Professor Quadrio reported the offender’s history as follows:

“At first, [the deceased and the offender] got on well with [the offender’s children] but [the deceased’s] behaviour slowly got worse. Possibly he was jealous of her relationship with her children. He started calling her names and saying things like she was a bad mother. He worked ‘off and on’ but didn't pay his own way; he spent his money on drink. [The offender] was on Newstart and didn’t have much money; she used a lot for cigarettes and alcohol …

[The deceased] was always at the pub and [the offender] would have to go looking for him. He would ‘piss in a bottle’ at night and then throw the urine at her. Sometimes she would go to her cousin’s house … just to get some sleep. [The deceased] continued throwing piss on her, pulling her hair, tipping the bed so that she fell out, taking the blankets off her. He broke the television and took the remote away. They broke up a lot of times and he would ‘go walkabout’ but he always came back. She didn't want him to upset the kids; they loved him too, but they told her not to keep letting him back. They were not happy with his behaviour … .”

69. This violence escalated in 2016. On 27 July 2016, a domestic violence incident occurred in which the deceased damaged some of the offender’s property. The offender related the incident to Associate Professor Quadrio as follows:

“About two or three years ago [the offender’s] nephew … had to call the police because [the deceased] threw the bed and broke it and smashed up the house and broke all her trinkets. He threw a bottle at the dog and made it bleed. The police put an AVO on him; it was supposed to be for him to go to AA but he didn’t go. He stayed away for a couple of days but then [the offender] allowed him to come back: ‘I loved him; I didn’t want him to leave.’ [The offender’s nephew] was fond of [the deceased] too and later actually apologised for calling the police …”

70. On 4 October 2016, the deceased was fined $300 for destroying or damaging property and an ADVO was made, specifying the offender as the protected person. In a recorded interview at the time, the offender denied that the deceased had physically assaulted her and said that she loved the deceased. She said her children also loved the deceased and he loved them.

71. In 2018, not long before the offence, there was an incident concerning a friend of the deceased, which was related by Associate Professor Quadrio in her report as follows:

“[The offender] had stopped at [the deceased’s friend’s house] on the way home from the pub; she was very drunk and had to sober up. The next day [the deceased’s friend] told [the deceased] they had sex. [The offender] told [the deceased] it wasn’t true, but he was very angry. He carried on with [the deceased’s friend] about it; he got worse, he went to the pub and apparently was throwing things at [the deceased’s friend] ‘and carrying on about it’.”

The offender’s psychiatric history

72. The offender started experiencing panic attacks in around 2009, while she was working at the newspaper. She described them to Professor Greenberg as “her heart pounding for a period of about five minutes”. Professor Greenberg noted:

“She states that she would have to breathe into a brown paper bag because she would get dizzy and feel faint. The frequency of the attacks occurred weekly or sometimes daily … She sweats, trembles, gets short of breath and has pins and needles in her hands.”

73. The panic attacks prevented the offender from carrying out basic tasks such as grocery shopping, taking a shower, attending church or performing any public speaking aspects of her role at the newspaper office. At one point, they occurred around 10 times per day, sometimes at night and accompanied by symptoms of insomnia. She said that they caused her to be taken by an ambulance from work on a few occasions.

74. The offender was referred to a psychiatrist in 2009 and diagnosed with panic attacks associated with anxiety and depression. She was treated with an anti-depressant medication, Lexapro 20mg, which she has been taking ever since. She attended monthly consultations with the treating psychiatrist for a period of around five months. The medication decreased the frequency of her panic attacks, but they did not cease. When the newspaper moved its office into the city in around 2011 or 2012, the offender resigned, because the panic attacks prevented her from commuting.

75. The offender’s depression commenced around the same time as her panic attacks. She told Professor Greenberg that she became depressed “approximately once per week”. She has never attempted suicide but has had suicidal ideation, once after an assault upon her in a domestic violence context and the other 18 months prior to the offence, when she was told by the deceased that she was a failure.

The offender’s drug and alcohol history

76. The offender began drinking alcohol when she was 16 years old and on a regular basis from her late 30s, initially to relax after work and assist her to sleep. When the panic attacks started, she drank a lot of alcohol, on a daily basis.

77. The offender’s drinking also escalated after the break-up of her second marriage in 2010, and again after her parents’ deaths in 2012. She reported to Professor Greenberg that after her parents died, she would consume up to 12 bottles of beer per day, which caused her to occasionally experience blackouts and alcoholic shakes.

78. The offender drank consistently during her relationship with the deceased, reportedly around three longneck bottles of beer per day. However, she denied using illicit substances, other than cannabis on one occasion as a teenager and once with the deceased.

Psychiatric assessments

Report of Associate Professor Quadrio

79. Associate Professor Quadrio assessed the offender via Audio-Visual Link (“AVL”) on 16 July 2019 and spoke to her via telephone on 5 and 9 September 2019.

80. Associate Professor Quadrio diagnosed the offender with complex post-traumatic stress disorder (“complex PTSD”) with the following comorbid conditions: chronic anxiety disorders (generalised, agoraphobic and panic); chronic depressive disorder; substance use disorder (alcohol); and enduring (post-traumatic) personality change. Associate Professor Quadrio also diagnosed the offender with a neurocognitive disorder (alcohol related).

81. Associate Professor Quadrio explained her diagnoses:

“This is a form of PTSD that arises from ‘complex trauma’, most commonly multiple childhood traumas. It may also develop in adults exposed to continuous or recurrent trauma, such as in domestic violence. Both situations are applicable to [the offender].

The traumas that [the offender] was exposed to in childhood include, witnessing her father's violence towards her mother; directly suffering her father’s physical abuse; exposure to parental substance abuse and to maternal mental illness; and extrafamilial sexual trauma. As previously noted, [the offender] reported the family violence in a bland way, indicative of post traumatic symptoms of numbing and denial; at the same time, she described her parents as loving and caring, which suggests ‘traumatic bonding’.

In situations of family violence, children are greatly at risk for developing both mental and physical health problems, especially problems with alcohol and with depression, and for repeating patterns of family dysfunction in their adult relationships. All these outcomes are evident in [the offender] and they are constitutive of Complex PTSD.

CPTSD is a form of chronic PTSD that is a combination of the symptoms of ‘simple’ or typical PTSD plus the symptoms of developmental disruption that arise from complex trauma (ICD criteria).

Symptoms of ‘simple’ PTSD affecting [the offender] include, hyperarousal with insomnia, heightened reaction to cues, edginess and hypervigilance; avoidance phenomena and withdrawal, numbing and dissociative phenomena.

Symptoms of complex trauma are more disruptive and more pervasive. They affect three domains of function: emotions (anxiety, depression and panic); relationships (dysfunctional or abusive); and self organisation (lack of self worth and failures of self protection). It is evident that [the offender] has suffered extensive disruption in all those domains.

Paranoia: [The offender] refers to ‘paranoid feelings’ but these are not paranoid in the sense of a psychotic or delusional illness, rather they reflect the hypervigilance that is characteristic of PTSD, especially in the context of interpersonal violence.

Dissociation: [The offender] describes prominent dissociative symptoms, such as ‘zoning out’ and time lapses; these symptoms can develop in PTSD and are also common in complex trauma. Dissociative symptoms are linked with memory disturbance, they are indicative of PTSD severity, and they are strongly linked to childhood abuse; all of which are relevant in this case.

Comorbidities

As already noted, trauma frequently leads to depression and anxiety as well as PTSD, substance abuse and personality disorder; these conditions commonly co-occur and share considerable symptom overlap, as is the case with [the offender]. This clinical presentation is complex precisely because childhood trauma is highly disruptive developmentally across all domains of function. Thus, trauma is ‘transdiagnostic’, it may manifest as any one of or a combination of psychiatric conditions, as it has with [the offender].

These comorbid conditions may be subsumed within the ‘overarching’ concept of Complex PTSD, as has been done in the diagnostic formulation above. This makes for better understanding of the person than does a list of separate diagnoses. However, there is variability in which aspects of CPTSD are more salient than others and any one of or several of the comorbidities may be so prominent as to justify being diagnosed separately. Either way of formulating the clinical presentation is valid. In the case of [the offender], anxiety, panic and alcohol dependency are the most salient issues, but depression and personality disturbances are also very significant. My preference is for the overarching CPTSD formulation, but each of those comorbidities meets diagnostic criteria for the condition as a separate disorder … as follows:

Chronic Anxiety Disorders: Generalised, Agoraphobic & Panic Disorder

As already noted, [the offender] suffers from chronic anxiety that is both generalised (non-specific) and specific as agoraphobic anxiety. The latter refers to anxiety in relation to leaving home or travelling or being in confined spaces. She also suffers from frequent episodes of overwhelming anxiety in the form of panic attacks. Panic is present in most cases of PTSD; it arises out of chronic hyperarousal and hypervigilance.

Chronic Depressive Disorder

[The offender] suffers from chronic depression, evident in chronic depressed mood and suicidality, persistent insomnia, low motivation, and cognitive symptoms (difficulties with memory, concentration and focus).

Substance Use Disorder/Dependence (Alcohol)

It is evident that [the offender] has been using alcohol at harmful levels for many years and has become dependent on it. Dependency is defined as, a strong desire to take the substance, difficulties controlling its use, persisting in use despite harmful consequences, a higher priority given to its use than to other activities and obligations, increased tolerance and liability to a physical withdrawal state …

[The offender’s] use of alcohol has been strongly influenced by her experiences of abuse and trauma from childhood and throughout her adult life …

There is strong link between alcohol and PTSD and depression and, as is particularly relevant to [the offender], there is a very strong association with panic attacks. The family background of substance abuse was also a strong predisposing factor as those patterns tend to be repeated in the next generation.

Notably, problems with alcohol are common in women in abusive relationships, again this reflects self-medication of anxiety and other post traumatic symptoms.

Enduring Personality Change (Post Traumatic)

Personality change is almost inevitable as part of Complex PTSD because there is disruption in self organisation and because symptoms are chronic and eventually become irreversible or ‘enduring’ personality change, manifest as difficulties with trust, feelings of emptiness or hopelessness, withdrawal, and chronic edginess (ICD criteria). This has been the case with [the offender], from a sociable and trusting young person she became progressively more withdrawn, fearful, mistrustful, and hypervigilant, and increasingly reliant on alcohol as a means of numbing, suppressing or self-medicating symptoms.

Complex trauma causes severe disruption in self organisation so this can result in any one or several of a range of personality disruptions or ‘complex personality disorders’. This applies with [the offender]: she presents features of other disturbances of personality, as follows:

Dependent/self-defeating personality traits: Complex PTSD involves failures of self protection, feelings of worthlessness, and dysfunctional interpersonal relationships; this constellation is evident in [the offender] and is also seen in ‘self defeating personality disorder’. It is not necessary in this case to designate it as a separate personality disorder, rather as personality traits that reflect complex trauma and enduring personality changes.

Obsessional personality: [The offender] also has prominent obsessive-compulsive symptoms or traits, including repetitive checking and locking, and compulsive counting and ordering. Again, it is not necessary to consider them as a separate personality disorder, but they have contributed to the disruption of her personality development. Childhood trauma and abuse are significantly linked with obsessive-compulsive symptoms. Again, these symptoms can be considered as manifestations of complex trauma and part of the enduring personality changes that [the offender] has suffered.

Antisocial: In terms of personality structure, [the offender] shows no antisocial features: she bears remorse for her actions and she has not shown a disregard for others, rather she has a strongly nurturing orientation, especially with respect to her loved ones. A nurturant disposition is not unusual in abused women and even renders them more vulnerable to exploitation; notably, it is the antithesis of a sociopathic orientation.

Notably, witness statements of the hotel employees confirm that although [the offender] and [the deceased] drank regularly at the local hotel and had frequent verbal disputes, she was not known to be troublesome or physically aggressive. It was also reported that she was seen to have injuries that she attempted to cover up.” (citations omitted)

82. With respect to her diagnosis of a neurocognitive disorder (alcohol related), Associate Professor Quadrio stated:

“These disorders are in a separate category from the preceding conditions in that they are regarded as ‘acquired’, whereas the conditions related to complex trauma are considered as ‘developmental’ (ICD criteria). This distinction was once described as organic versus functional, or as biological versus psychological, a dichotomy that is no longer considered relevant psychiatrically; however, conditions arising from actual brain disorders are still considered separately, as follows:

Neurocognitive disorder (alcohol related)

As a result of her many years of alcohol use, [the offender] has suffered brain damage. This was evident at interview in her considerable difficulties with memory and with establishing time sequences. It was assessed more precisely in the standardised neuropsychological tests administered by Dr Ashkar and described in his detailed report. There is also a contribution to these cognitive changes from trauma, including Complex PTSD and its comorbidities, anxiety and depression [. They] tare some of the overlapping or shared symptoms referred to earlier.

Because [the offender] is still able to function in terms of activities of daily living, her neurocognitive disorder is regarded as mild in psychiatric terms, however, that does not mitigate its impact on executive thinking.” (citations omitted)

Report of Professor Greenberg

83. Professor Greenberg’s reports were tendered by the Crown at the sentence hearing. Professor Greenberg’s report dated 26 May 2020 followed an initial assessment of the offender via AVL on 6 May 2020 and a further assessment via telephone on 14 May 2020.

84. He diagnosed the offender with alcohol use disorder; panic disorder with agoraphobia; depression; mild neurocognitive disorder (preliminary); and PTSD. Professor Greenberg elaborated:

“I. Alcohol Use Disorder

During my psychiatric assessment, [the offender] reports a history of heavy alcohol intake since the onset of her panic attacks, birth of her second child and after the death of parents (approximately 15 years or more). She reports symptoms of alcoholic blackouts, early-morning drinking and alcoholic shakes. She reports a history of tolerance and daily intake of up to 12 bottles of beer per day. [The offender’s son] alleges his mother was a heavy drinker and would drink whenever she could afford to drink. She often drank 10 beers of any brand in a night. [The offender’s second husband] also alleges a lengthy history of alcohol misuse.

In my opinion, [the offender] qualifies for the diagnosis of an alcohol use disorder …

II. Panic Disorder with Agoraphobia

[The offender] qualifies for the diagnosis of panic disorder with agoraphobia. [The offender’s] panic attacks and agoraphobia are not specifically associated with reminders of any traumatic events such as [PTSD] and therefore she qualifies for this separate diagnosis.

…

III. Depression

Associated with her panic attacks, [the offender] has suffered from depressive symptoms for most of her adult life. I am of the view her depressive symptomatology was more in keeping with a Persistent Depressive Disorder (a more chronic form of depression previously termed Dysthymia).

…

IV. Mild Neurocognitive Disorder (Preliminary)

…

In my opinion, [the offender] meets most of the criteria for this diagnosis. However … she has executive functioning deficits but there is no evidence to suggest that these deficits were sustained and significant, and interfered with her independence in everyday activities … Tests such as the Adaptive Behaviour Assessment System (ABAS) would be a useful test in order to clarify whether [the offender] meets the criteria for a mild neurocognitive disorder.

Post-traumatic Stress Disorder

[The offender] reports that she has suffered multiple traumas over her lifetime. She was raised in a dysfunctional home [where] her father perpetrated domestic violence against her mother and her mother was an alcoholic. Nevertheless, she reports a close loving relationship with both her parents. She reports that her father was a strict disciplinarian who would on occasion physically punish her for being ‘cheeky’. She claims she was sexually abused at the age of 10 years old but never reported this abuse because she was scared and feared not being believed. In my view [the offender] is not very psychologically minded and tends to avoid anxiety provoking thoughts or memories. She denies many of the classical features of PTSD but it can be inferred that she experienced some but not all of these symptoms. She reports that in her first marriage, her husband was verbally abusive to her and on occasions pushed her. She alleges in her second marriage of 20 years; her husband was verbally and emotionally abusive but did not physically assault her during the marriage. However, after they separated, he assaulted her and she called the police and he was charged. There is documentation in the Blacktown Hospital records to support her claim. Her third long-term relationship was with the deceased … whom she reports was emotionally, verbally and physically abusive. She claims that the relationship deteriorated markedly in the last 18 months prior to the alleged offence. She alleges he would pull her hair. He broke her property and also threw objects at her, including on one occasion urine. When specifically asked about symptoms of PTSD, she denies many of the features such as re-experiencing phenomenon. However, in my view it can be inferred that she may have [some] of these features, such as negative cognitions.”

Supplementary report of Professor Greenberg

85. Professor Greenberg provided a supplementary psychiatric report dated 27 January 2021, its purpose being to clarify the:

“… apparent tension between my opinion and the opinion of [Associate Professor Quadrio] (with respect to [Associate Professor Quadrio’s] diagnosis of Complex PTSD, versus my diagnosis of a number of comorbid conditions including PTSD).”

86. With respect to a diagnosis of PTSD, Professor Greenberg stated:

“In my opinion … [the offender] denies many of the core features of PTSD. However, it can either be inferred or she endorses symptoms so that she likely meets the clinical criteria for [PTSD].”

Report of Dr Furst

87. In his report dated 5 March 2021, Dr Furst opined that the offender meets the criteria for social anxiety disorder; panic disorder with agoraphobia and alcohol use disorder. Dr Furst explained:

“[The offender] has a lengthy history of anxiety and low mood, the origin of which appears to relate to problems in her family home (parental conflict and parental/maternal drinking) and apparent sexual abuse victimisation when she was 10-12 years of age.

It would appear that [the offender] largely internalised her traumatic experiences as a child as a consequence of shame, embarrassment and strict parental control, resulting in chronic anxiety as the teenager in the form of social phobia (social anxiety disorder), which manifested in a fear of reading out loud and/or speaking in public.

Her social anxiety disorder continued in her working life, being exacerbated by the onset [of] panic attacks in what became an entrenched panic disorder. She also has features of agoraphobia, including avoidance of public transport and shopping centres, i.e. panic disorder with agoraphobia. Symptoms of anxiety in her 20s, 30s and early 40s were likely maintained by her dysfunctional marriage, [the offender’s] second husband being accusatory, controlling and possessive.

Her drinking did not really become a clinical problem until she separated from her second husband around 2012, her drinking being exacerbated and maintained between 2013 and 2018 by her abusive domestic relationship with the deceased … who was a habitual drinker. She was also unable to continue working for [the newspaper] from around 2014, as there were public speaking requirements (train the trainer) and the office of employer was relocated from the western suburbs to the city, [the offender] being unable to handle the stress, anxiety and panic associated with public transport usage. It was in this context that [the offender] developed an alcohol use disorder, drinking excessively on most days a week, as was her partner [the deceased].

Symptoms of anxiety and depression have persisted in custody since her arrest in October 2018.”

88. With respect to the diagnosis of complex PTSD made by Associate Professor Quadrio and, to a lesser extent, Professor Greenberg, Dr Furst opined:

“The reasons cited by both experts, in my opinion, are based on assumptions or inferential reasoning about core symptoms of PTSD (typically re-experiencing phenomena such as flashbacks or nightmares) being present but not reported and/or the absence of such symptoms, but the presence of multiple other less specific symptoms qualifying her for the diagnosis in any case. I would respectfully disagree with this diagnostic approach.

The history obtained and reported, both to her general practitioner for many years, to the two experts … and to myself, and the behaviour reported by [the offender] over many years, both at school and in the workplace, involve chronic symptoms of anxiety coupled with functional impairment that are entirely consistent with the diagnoses made above by myself, i.e. social anxiety disorder and panic disorder with agoraphobia, without the need to also make a diagnosis of PTSD.

Additionally, it cannot be inferred, in relation to psychiatric diagnosis, that just because a child has suffered psychological trauma, even severe trauma such as sexual abuse, that they have PTSD or will develop PTSD or ‘complex PTSD’ …

However, given the difficulties of making a precise psychiatric diagnosis based on retrospective analysis of reported symptoms, and the possibility of underreported and/or suppressed symptoms, I do accept the possibility of a diagnosis of post traumatic stress disorder/complex PTSD, as outlined in the reports of [Associate Professor Quadrio] and [Professor Greenberg].”

89. Dr Furst also noted that relevant considerations include the damaging effects of long-term alcohol consumption on the offender’s brain; the presence of a depressive disorder; and the increased dose of Lexapro that the offender was prescribed five days before the offence occurred.

90. With due respect to Dr Furst, I am satisfied on the balance of probabilities that at the time of the offence, the offender was suffering from an untreated complex PTSD. I am satisfied that she had the comorbid conditions identified by Associate Professor Quadrio and Professor Greenberg, which I note overlap to some extent.

91. Professor Greenberg was of the view that further testing was required to confirm whether the offender had a mild neurocognitive disorder, whereas Associate Professor Quadrio was of the opinion that it was established. Having regard to the corroborative material that she identified in her report in the excerpted passage at [82] above, on the balance of probabilities, I accept Associate Professor Quadrio’s diagnosis of a mild neurocognitive disorder (alcohol related) with its consequent effects on the offender’s memory and capacity for establishing time sequences.

The nature of the partial defence to murder of substantial impairment

92. Section 23A of the Crimes Act has recently been amended. At the time of the offence, it relevantly provided:

“23A   Substantial impairment by abnormality of mind

(1)   A person who would otherwise be guilty of murder is not to be convicted of murder if:

(a)   at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and

(b)   the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

…

(3)   If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section.

…

(8)   In this section:

underlying condition means a pre-existing mental or physiological condition, other than a condition of a transitory kind.”

The basis of the application of the partial defence of substantial impairment

93. I am satisfied that the diagnoses made by Associate Professor Quadrio and Professor Greenberg, including the diagnosis of complex PTSD, qualify as “underlying conditions” for the purposes of s 23A(8) of the Crimes Act.

94. Section 23A(1)(a) specifies three capacities, one or more of which must be substantially impaired in order for the partial defence to apply: namely, the person’s capacity to understand events; and/or to judge whether the person’s actions were right or wrong; and/or to control himself or herself. It is necessary to determine which of these bases applies to the offender.

95. In her report, Associate Professor Quadrio concluded that the offender’s capacity for “judgment”, “reasoning” and self-control were affected; that is, the first and third bases specified in s 23A(1)(a) were made out. She stated:

“In my opinion … at the time of the alleged offence, [the offender’s] cognitive capacities were substantially impaired due to a combination of neurocognitive, psychiatric and psychological conditions, including the short term effects and the more chronic brain damage due to alcohol. This impairment would have affected her memory and her judgement and her capacity for reasoning about and controlling her actions. She has patchy memory loss for that day and for several days around that time. Her memory and her reasoning remain impaired at the present time.”

96. Professor Greenberg excluded the first two bases and, in relation to the third, was of the view that there were two competing views available on the evidence. The first view (“the preferred view”), set out at pages 48 and 49 of his first report, was that the offender’s capacity for self-control was substantially impaired by an abnormality of mind arising from underlying comorbid conditions. The other view (“the alternative view”) was that her capacity for self-control was substantially impaired by her severe intoxication and anger. On the alternative view:

“The comorbid psychiatric disorders made it harder to a degree, for her to control her anger but not markedly harder if the impact of her severe intoxication is to [be] ‘discarded’ from this judgement.”

97. On this alternative view, the partial defence would have been unavailable to the offender, since the substantial impairment would have been primarily due to her intoxication rather than an abnormality of mind: s 23A(3) of the Crimes Act. It is apparent from the Crown’s acceptance of the plea that it acceded to Professor Greenberg’s preferred view. That is unsurprising, given Professor Greenberg’s opinion in his subsequent report that, referring to Associate Professor Quadrio’s opinion:

“… we both concur with the view that there is justification [for the view that the offender’s] capacity to control her actions at the time of the alleged offence was substantially impaired by abnormality of mind arising from her underlying comorbid conditions (pages 48-49 of my report …).”

98. I accept the opinions of Associate Professor Quadrio and Professor Greenberg that the offender’s capacity to control herself was substantially impaired. Correspondingly, I am not satisfied that her capacity to understand events or to judge whether her actions were right or wrong, were substantially impaired.

Objective seriousness

99. A mental disorder is relevant to a determination of objective seriousness: see Tepania v The Queen (2018) 275 A Crim R 233; [2018] NSWCCA 247 at [112]. In the context of manslaughter by substantial impairment, the offender is taken to be substantially impaired by virtue of the acceptance of the plea by the Crown. In assessing the objective seriousness of an offence of manslaughter by substantial impairment, the focus in terms of the mental disorder is on the extent to which the degree of impairment exceeded what was required to activate the partial defence, provided it contributed to the commission of the offence: Catley v R [2014] NSWCCA 249; R v Fiona Barbieri [2014] NSWSC 1808 at [88]. See also Ukropina v R [2016] NSWCCA 277 at [35]-[38].

99. The Crown submitted that “it is open to the Court to find” that the offender’s impairment “was at the lowest end of the scale”, referring to the pages in Professor Greenberg’s report dealing with the alternative view, that the offender’s substantial impairment was due to intoxication. However, as noted, it is apparent that Professor Greenberg’s preferred view was that the offender’s substantial impairment was due to her psychiatric and psychological diagnoses. I do not think that the alternative view necessarily mitigates the extent to which the preferred view applies.

100. It is appropriate to reproduce that part of Professor Greenberg’s report in which he explained his preferred view, which he later affirmed:

“[The offender] reports a history of emotional, physical and sexual abuse during her childhood. She denies re-experiencing phenomenon of PTSD to these traumas and, in my view, as an adult she misuses alcohol as a coping strategy. Not directly related to her PTSD, she developed panic attacks in adulthood. She claims she coped with her panic attacks and prevailing life stressors by further abusing larger amounts of alcohol. She qualifies for the diagnosis of alcohol use disorder (alcoholism) with some mild executive function cognitive deficits involving higher-order thinking. She reports further life traumas during her adult intimate relationships, where she alleges, she was verbally and physically abused. She likely [qualifies] for the diagnosis of low-grade chronic depression (persistent depressive disorder) and a history of panic attacks with agoraphobia in adulthood. There is possible evidence of affective dysregulation (mood swings) as part of her PTSD. She alleges her pattern of drinking and constant ongoing arguments several times a week with the deceased spanned a period of eighteen months prior to the alleged offence. In my view, these comorbid disorders all played a role in her mental state at the time of the alleged offence.

Her prevailing stressors and severe intoxication at the time of the alleged offence, likely precipitated her alleged violent outburst of anger. She describes her relationship with the deceased as ‘toxic’ as they were constantly arguing. [The deceased] was allegedly verbally, emotionally and physically abusive. She was concerned about the physical health of her grandson who had undergone open heart surgery. She allegedly had limited sleep the night prior to the alleged offence. [The deceased] had allegedly previously graffitied all the furniture at home and on the day of the alleged offence, he graffitied the toilets and furniture at [the Hotel]. [The deceased] had allegedly taken additional money from her bank account. [The deceased] had allegedly taken her phone and bank card and would not return it to her. She claims he threw her bank card in the yard but took her phone with him as he left the house. (I note in her ERISP she alleges they were ‘screaming at each other’ and she took her card off him and went home (questions 367-370).) She alleges she was about to leave the home for the hospital to visit her grandson and daughter at that time.

It could be argued that individuals with PTSD, following cumulative recurring and multiple traumas both in childhood and adulthood would have recurring difficulties with emotional regulation and interpersonal relationships in their adult life. In such individuals one would expect to see recurring difficulties with dysphoria and anger and other impaired behaviours at other times prior to the alleged offence. These individuals often have a disturbed sense of self where they have feelings of worthlessness. Her difficulties with interpersonal relationships and social disengagement were features of her stress related PTSD condition. Expressions of self-regulatory problems can be characterised by heightened emotional reactions to minor stressors with violent outbursts especially under stress. It could be argued that it is therefore possible that her capacity to control her actions at the time of the alleged offence may have been substantially impaired by abnormality of mind arising from her comorbid psychiatric conditions.”

102. On the basis of this passage, and Associate Professor Quadrio’s opinion, I conclude that the degree of impairment was significantly more than what was required to activate the partial defence.

103. Another aspect of objective seriousness is the intent that accompanied the act causing death. In evidence, the offender said that she did not know what her intention was, by which I understood her to mean that she could not recall it, because of her intoxication, although she accepted as an agreed fact that she stabbed the deceased. It was submitted on behalf of the offender that, because of the offender’s extreme degree of intoxication, “she probably acted without [an intention to kill] in that she was not fully aware of the severity of her actions”. Reliance was placed on the opinion of Professor Christie, who stated:

“I cannot state conclusively whether or not the expected severe impairments of the brain processes with a BAC in the likely vicinity of 0.27 g% and perhaps as high as 0.31 g% would have affected [the offender’s] ability to form an intention to cause death or really serious injury at the time of the alleged offence but her ability to perceive clearly, think clearly and rationally, and control emotional reactions would have been severely disrupted. I therefore consider there is a reasonable possibility that due to [the offender’s] intoxication by alcohol at the time of the alleged offence that she did not appreciate that by her actions she would cause serious harm to the victim. [The offender] is likely to have suffered severe psychomotor impairment, severe impairment of emotional control, increased impulsivity, impaired judgement, reasoning and decision making to the extent that she may have been unaware or not fully aware of the severity of her actions at the time of the alleged offence.”

104. I note Professor Greenberg’s agreement with these observations by Professor Christie:

“… I concur with Professor Christie that her impaired judgement, reasoning and decision-making were impaired to the extent that she may not have been fully aware of the severity of her actions at the time of the alleged offence. The statements of her son … and her nephew … alleged that after she stated she ‘stabbed’ him, she then stated she ‘just poked him’ or ‘it was only a little poke’. It could be inferred that she did not understand the full severity of her acts or she was minimising her violent act …”

105. As to the likely degree of force used by the offender in stabbing the deceased, there is no evidence as to the depth of the knife wound, other than that it was sufficient to penetrate the deceased’s heart, or of what clothing, if any, the knife first penetrated. However, a photograph of the knife is part of the agreed facts. It had a finely narrowing point, such that I conclude that it is likely that only minimal force would have been necessary to penetrate clothing of medium thickness.

106. In evidence, the offender denied that at the time she stabbed the deceased, she intended to kill him. She maintained a degree of uncertainty, and perhaps ambivalence, as to what she knew at the time of the Triple Zero call as to where on the deceased’s body she had stabbed him. Although she told the operator that the deceased had been stabbed in the heart, when it was put to her that therefore she knew she had stabbed him in the heart, she agreed that she knew that she had stabbed him in his chest, but said: “I wasn’t sure whether it was the heart or not, I only found it out recently when all this happened, when I came into custody”.

107. I am satisfied beyond reasonable doubt that the intention of the offender was to stab the deceased to the chest and in so doing, that she appreciated that it was a life-threatening injury. She left her house with the knife that she had specifically obtained; she called out to the deceased to come to her; she stabbed him once; and left the knife at the scene and returned home. These acts bespeak a specific purpose in going after the deceased and that the purpose was achieved. If not for her level of intoxication, those same acts, given that the single stab wound was to the deceased’s chest, would also bespeak an intention to kill. However, given her level of intoxication, for reasons explained by Professor Christie in the extracted passage at [103] above, that conclusion does not necessarily follow.

108. In evidence, the offender conceded that, at the time of the call, she did not want to accept responsibility for stabbing the deceased, and thus she lied by not telling the operator, when asked, who had stabbed the deceased. The fact that the offender told lies in that call is not necessarily evidence of her having knowingly stabbed the deceased in the heart; that is, having inflicted an injury with an intention to kill. Her motive in lying may have been the realisation of the consequences of what she had done, having seen the blood flow which inevitably would have resulted from her having stabbed him in the heart; she may have deduced that the wound had penetrated his heart, rather than that having been her intention at the time she stabbed him.

109. In view of the expert opinions of Professors Christie and Greenberg, I am not satisfied beyond reasonable doubt that at the time that the offender stabbed the deceased, she intended to kill him. I find that the offender’s intent in deliberately stabbing the deceased in his chest was to cause him really serious bodily harm (grievous bodily harm).

110. I turn now to another issue which, in the context of this case, bears on where to fix the objective seriousness of the offence, which is that of non-exculpatory provocation. There were a series of provocative acts by the deceased that day. At 12:27pm, the offender discovered that the deceased had withdrawn money from her bank account, which she believed would have been to buy cannabis. In the early afternoon, she was contacted by the Hotel at which they were both regular drinkers, which she attended, to be informed about the graffiti by the deceased in the men’s toilets. That followed on some six months of accusations by the deceased that she had been having sexual liaisons with another man, which she said were false. The same day, the deceased had used a felt pen to write or draw graffiti on her late father’s furniture in their home. She saw the graffiti when she returned home from the Hotel. In evidence, she said:

“It made me very sad … My father worked hard to have a home. He left that to us so I found it wasn’t a very nice thing to do.”

The final argument ensued shortly afterwards.

111. I find that the offender’s attack on the deceased is partly explicable as being a response to provocation. The Crown accepts that the deceased engaged in provocative behaviour but submitted that it warranted “very minimal attribution” in formulating the sentence. I am of the view that the effect of the provocation on the offender is to be understood in the context of her long-standing anxiety and depression, and the embarrassment and humiliation associated with it occurring in the Hotel in which they were regarded in that community as regulars.

112. A matter that increases the objective seriousness of the offence is that the argument that immediately preceded it, although heated and prompted by the disgraceful conduct of the deceased in terms of his graffitiing of the men’s toilet at the Hotel and the offender’s late father’s furniture, was nevertheless non-violent, and the deceased had complied with a direction to leave the house.

113. The Crown submitted that the offending was “at the higher end of the mid-range of objective seriousness”. The offender submitted that it was “below the middle of the range”. I conclude that when all the relevant factors are taken into account, the objective seriousness of the offence was just below mid-range.

Relevant aggravating and mitigatory circumstances

114. I make the following observations in relation to relevant circumstances of aggravation and mitigation identified in s 21A of the CSP Act.

115. As to aggravating factors, the offence involved a knife (s 21A(2)(c)). There was a degree of planning, although minimal; moments before the offence, the offender took a knife from the kitchen and pursued the deceased up the street. In my view, the deceased was vulnerable (s 21A(2)(l)), because of his extreme inebriation.

116. As to relevant mitigating factors, I have already referred to the deceased’s provocative conduct shortly before the offence (s 21A(3)(c)). I note the following further mitigatory considerations.

Not part of a planned or organised criminal activity: s 21A(3)(b)

117. As noted, the planning of the offence was minimal. It could equally be said that the offence occurred in a broader context of a heated argument between the offender and the deceased, immediately after they were separated by the offender’s son.

Criminal history: s 21A(3)(e)

118. The offender’s only prior criminal conviction is for contravening an AVO, on 22 March 2015. The offender’s daughter was named as the protected person. A condition of the AVO was that the offender not approach her daughter within 12 hours of consuming alcohol or illicit drugs.

119. A facts sheet in relation to that matter was tendered, which was to the effect that the offender consumed three beers at a friend’s house at around 4pm, then went to Number 28 where she intended to stay the night; she was residing elsewhere at the time. A few hours later, at around 9:30pm, the offender’s daughter arrived with her boyfriend. An argument ensued, and the offender’s daughter called the police. The offender admitted to police that she had consumed three beers earlier that day. She was fined $250.

Prior good character: s 21A(3)(f)

120. Letters attesting to the offender’s otherwise good character were tendered. They were authored by her daughter, two members of her daughter’s partner’s family, a maternal aunt and a niece through the marriage to her second husband. In combination, they portrayed the offender as overcoming familial shortcomings in her upbringing and going on to being a devoted mother, supportive of her broader family and having a successful career in the employment of the suburban newspaper. The letters also relate how a succession of events took a toll on the offender’s mental health: the panic attacks from her increasing anxiety; her growing dependence on alcohol; the loss of her parents; and then the ray of hope that was the birth of her grandson. The major open-heart surgery on her grandson also took its toll, that surgery being the day before the offence. I note, in particular, the offender’s daughter’s commitment to helping her mother on her eventual release from prison.

Plea of guilty: s 21A(3)(k)

121. The proceedings against the offender commenced at a time that brought them within the ambit of the amendments to the CSP Act and cognate legislation, known as the Early Appropriate Guilty Pleas scheme. Pursuant to s 25D(2)(a) of the CSP Act, the offender is entitled to a discount of 25 per cent for the utilitarian value of her plea of guilty.

Evidence of remorse: s 21A(3)(i)

122. The offender expressed remorse in her evidence at the sentence hearing, as well as in her interviews with the forensic psychiatrists.

123. At the hearing, the offender acknowledged that the incident was not an accident and that it was not the deceased’s “fault”, despite the statements she made in her interview with police and to her family in the telephone calls from gaol extracted at [37]-[40] above. The offender stated that she previously described the incident as an accident because she “was in shock at the time … I didn’t accept it like I do now. I accept it”. She stated that she is now “Deeply and very, very sad … I am deeply sorry”.

124. Section 21A(3)(i) provides that remorse is only a mitigating factor if there is evidence of the offender accepting responsibility for her actions. I accept that the offender is genuinely remorseful and that she now accepts responsibility for her actions, although for some time after her arrest she did not.

Conditions of custody

125. Dr Furst made the following observations in his report:

“[The offender] … is prone to high levels of anxiety, panic attacks and depression, meaning the stress of the custodial environment will most likely maintain her symptoms of anxiety, as has been the case over the last 28 months. She is also vulnerable to exploitation and/or abuse from other inmates because of her mental health problems. Therefore, in my opinion [the offender’s] mental disorders and related impairment in her function and socialisation will likely make a custodial sentence more onerous for her than the theoretical ‘average’ inmate.”

126. In evidence, the offender said that she receives medication for depression and anxiety and counselling, in the form of monthly sessions with a psychiatrist and fortnightly sessions with a psychologist. She is open to participating in courses in custody concerning alcohol addiction, but opportunities to do that in protection are limited. Some Corrective Services case notes concerning the offender were tendered. There was a reference in a note made on 25 November 2020 that the offender stated that she continues to experience panic attacks.

127. Through much of her period on remand, the offender has not had the benefit of in-person visits, due to the restrictions introduced to control the Covid-19 pandemic. I accept that this would be particularly hard on the offender, given her ongoing depression and anxiety.

128. The offender has been held in protective custody at her request, because of her fears for her safety following on the publicity surrounding the offence.

129. She has a trusted position in the prison system; she is a representative of the Inmate Development Committee, which facilitates communication between prison management and prisoners.

Risk of re-offending: s 21A(3)(g)

130. The only forensic psychiatric report tendered in the proceedings that addressed future dangerousness was that of Dr Furst. He listed the offender’s static and dynamic risk factors and her protective factors, and concluded:

“Overall [the offender] has a relatively low loading in relation to both static and dynamic risk factors, presenting as a prosocial, caring and empathic individual who does not have anger issues or a propensity towards violence. She has no prior criminal charges of a serious nature [apart from the index offence], was working throughout her adult life, has been a responsible mother. She was also a caring grandmother in the period just prior to the offence in question. She also has a number of protective factors, as outlined above. Therefore, I am of the opinion that [the offender] has a low risk of reoffending, both in relation to general offending and in relation to serious violent offending.”

Prospects of rehabilitation: s 21A(3)(h)

131. Consistently with his view of the risk of the offender re-offending, Dr Furst had a favourable view of the offender’s prospects of rehabilitation:

“[The offender] has good [prospects] of being successfully rehabilitated, with the likelihood that she will adjust well when released to the community. She expressed an intention not to drink again, and, given the circumstances … of her incarceration and the tragic death of her partner [the deceased], there appears to be every likelihood that [the offender] will indeed remain sober from alcohol when released from custody. However, additional support/counselling is indicated, namely participation in the EQUIPS (Addiction) program whilst in custody and probably attendance at Alcoholics Anonymous when released from custody.”

Submissions on behalf of the offender

132. It was submitted that the psychiatric and psychological diagnoses of the offender made general deterrence less significant in the formulation of the sentence, for the reasons set out in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] and Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [53] to [54].

132. Counsel for the offender submitted that the Court should find special circumstances pursuant to s 44(2) of the CSP Act, namely, that the statutory ratio of the non-parole period to the balance of term be varied, so that the offender would be subject to supervision for a longer period when she returns to the community. The basis of the application was the conditions of her custody, which include the anxiety that she suffers, and a submitted need for extended supervision.

133. Counsel referred the Court to some past sentences for the offence of manslaughter by substantial impairment, and appropriately accepted that they are of limited assistance, since each case turns on its own features. As has been often observed, the protean character of the offence of manslaughter renders the sentencing range almost uniquely broad: see, for instance, Ward v The Queen (2006) 166 A Crim R 273; [2006] NSWCCA 321 at [70].

Consideration

135. I have regard to the various purposes of sentencing that are set out at s 3A of the CSP Act, which are, in the context of this case: to denounce the offender’s criminal conduct in committing the offence; to adequately punish her and hold her accountable for her actions; to deter her and others from committing similar offences; to protect the community; and to recognise the harm done to the victim of the crime and the community. I earlier referred to my intention to take into account the impact of the offence on the deceased’s family in that regard. At the same time, a purpose is to promote the offender’s rehabilitation, which directly contributes to the protection of the community from further serious offending by the offender. Some of those purposes are modified in their application or weight by the common law, for example, whether the offender is an appropriate vehicle for deterring others: Director of Public Prosecutions (Cth) v De La Rosa at [177].

136. The offence is a domestic violence offence, having regard to the definition of that term at ss 4 and 11(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Accordingly, pursuant to s 4A(1) of the CSP Act, the Court must impose either a sentence of full-time detention or a supervised order. Section 5(1) of the CSP Act obliges a court to not sentence an offender to a term of imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. I am satisfied that only a sentence of imprisonment is appropriate.

137. The offender was aged 50 at the time of the offence and is now aged 53. She does not have a personal history of violent behaviour or a record of significant criminal offending, despite many years of excessive drinking of alcohol and arguments with the deceased. This history naturally prompts the question, why was it, that on this occasion the argument became so violent?

138. There were unusual factors at play in the leadup to the offence. The serious operation on her grandson the previous day preoccupied her, as did her impending return visit to the hospital. As she told the Hotel staff shortly before the offence, at a time when there was no motive for her to lie, she had not slept or eaten. On being told of the graffiti in the men’s toilets, she appeared to the Hotel staff to be drawn and distressed. In view of her anxiety issues, it must have been particularly distressing for her to be told of the nature of the graffiti that her partner had placed all over the men’s toilet area, including her phone number, in the hotel in which they were regulars. That was compounded by the graffiti that the defendant had drawn or written with a felt tip pen over the offender’s father’s furniture, in their home. The offender’s moral culpability is reduced by these factors.

139. Having left the Hotel and returned home, the offender confronted the deceased, which deteriorated into an argument that was so heated that the offender’s son had to tell the deceased to leave. At that point, in the space of what must have been no more than a few minutes, as a result of her various mental disorders that she had accumulated over her lifetime, her self-control became so impaired that she took a knife, gave chase, re-engaged the deceased in a brief verbal confrontation and then stabbed him once in the chest with the knife thereby intending to seriously injure him, but in fact causing his death.

140. The exercise of sentencing an offender requires the court to determine to the relevant standards of proof, from the evidence before it, the facts that are relevant for the sentence. The objective seriousness of the offence is assessed, and relevant factors that are subjective in nature are identified. In those contexts, the various aggravating and mitigating factors that I have earlier referred to are assessed, and in the framework of the purposes of sentencing, as identified in the CSP Act and in the common law, all of those considerations are synthesised in order to fix the appropriate sentence.

141. I find that there are special circumstances and I will vary the statutory ratio of the non-parole period to the balance of term. The special circumstances are the need for the offender when she returns to the community to apply and maintain her commitment to not return to excessively drinking alcohol and to continue to receive treatment for her anxiety, which I find to be factors that were central to her committing the offence. Her continuing anxiety renders her experience of prison harsher than it would be for others, which is a separate basis for finding special circumstances: Director of Public Prosecutions (Cth) v De La Rosa at [177].

Formulation of the sentence

142. A head sentence of 10 years and 6 months is appropriate, from which the discount of 25 per cent for the offender’s plea of guilty is made, resulting in the head sentence being reduced to a period of 7 years and 10 months, rounded down to the nearest month. I fix a non-parole period of 5 years.

143. The offender has been in custody since her arrest on the day of the offence, so the commencement of the sentence will be backdated to that date, being 10 October 2018.

Sentence

144. Lisa Srsa, for the manslaughter of Glenn Pedgrift, I sentence you to a term of imprisonment for a period of 7 years and 10 months, commencing on 10 October 2018 and expiring on 9 August 2026. I impose a non-parole period of 5 years. You will become eligible for release to parole on 9 October 2023.

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Decision last updated: 30 July 2021