R v Stanley (No. 2)

[2023] NSWSC 74

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Stanley (No. 2) [2023] NSWSC 74

Hearing dates:

24 November 2022

Date of orders:

10 February 2023

Decision date:

10 February 2023

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

For the offence of manslaughter I impose a sentence of imprisonment of 6 years commencing 3 January 2021 and expiring on 2 January 2027, with a non-parole period of 3 years and 6 months commencing 3 January 2021 and expiring on 2 July 2024.

The offender will become eligible to be released on parole on 2 July 2024.

Catchwords:

SENTENCING – remarks on sentence – manslaughter – excessive self defence – where deceased attended home of offender with others – where offender was “called out” to fight – where offender ran out of house wielding a kitchen knife – early plea of guilty to manslaughter – vulnerable in custody – Bugmy considerations – true remorse – good prospects of rehabilitation – special circumstances

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Aslan v R [2014] NSWCCA 114

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Cheung v R (2001) 209 CLR 1; [2001] HCA 67

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Fuller v R [2022] NSWCCA 203

JM v R (2012) 223 A Crim R 55; [2012] NSWCCA 83

Paterson v R [2021] NSWCCA 273

R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

R v Tsingolas [2022] NSWDC 34

Smith v R [2015] NSWCCA 193

Category:

Sentence

Parties:

Regina (Crown)
Shelby Stanley (Accused)

Representation:

Counsel:
B Queenan (Crown)
S Hall SC (Accused)

Solicitors:
Office of the Department of Public Prosecutions (Crown)
Karim & Nicol Lawyers (Accused)

File Number(s):

2021/00028314

Publication restriction:

Nil

Judgment

1. On 15 August 2022, the offender, Shelby Stanley, was arraigned before a jury on an indictment that charged him with murdering Bradley Stanley on 3 January 2021. The offender entered a plea of not guilty to murder, but guilty of manslaughter on the basis of self-defence. That jury had to be discharged and Mr Stanley maintained the same position when he was arraigned before a fresh jury on 18 August 2022. Evidence was called by the Crown over the next two weeks until the Crown case closed on 29 August 2022. At this time the plea that was initially rejected by the Crown was accepted and the jury was discharged.

2. The effect of all of this is that the factual basis upon which the plea of guilty to manslaughter was accepted by the Crown was that Mr Stanley had believed that his conduct was necessary to defend himself, but his conduct was not reasonable in the circumstances as he perceived them. This is referred to excessive as self-defence.

3. The offender now stands to be sentenced for that offence.

4. Agreed Facts signed by the offender and the Crown were tendered on sentence and I will sentence him on those agreed facts as follows.

5. On Saturday 2 January 2021 in the late afternoon, a group of young people went to Daniel Stanley-Barrow’s house for a party. The offender arrived about 6:00pm and was drinking Great Northern full-strength beers. Isaiah Stanley, Bradley Stanley and Ezekiel Stanley arrived sometime around 7:00pm to 8:00pm. Isaiah was drinking beer and Jim Beam and Bradley was drinking beer. Isaiah estimated that while he was there, he drank about 6 to 8 beers and 2 cups of homebrew that had some bourbon in it. He thought that the offender drank roughly 2 or 3 more beers then him. Isaiah thought that Bradley had a “fair bit to drink maybe 16 to 17 beers” and maybe a few cups of homebrew as well.

6. Also present at the party was Duygu Arici who was Isaiah’s ex-partner. She drank 8 to 9 spirits that night.

7. About 4:00am Ezekiel left and went home to 79 Gobolian Street Wellington.

8. At about the same time, Daniel Stanley-Barrow ended the party at his place and everybody left except the offender, Taylor Cubby, Isaiah Stanley, Bradley Stanley and Duygu who remained a little longer and then they all left together. Taylor reported that the plan was to walk to Isaiah’s house to keep partying. As they were walking, Duygu and Taylor walked ahead with their arms linked. Duygu said that the offender was saying things to Isaiah about his ex-girlfriends.

9. As the group approached a footpath crossing the railway line near Whitely Street, Isaiah argued with Duygu about walking alone with Taylor and then Bradley and Isaiah left the group and walked home to 79 Gobolion Street and went inside.

10. About this time the offender approached Taylor and said that Bradley and Isaiah “want to hit you”. About this time the offender also spoke to his friend Kayne Staggs on his mobile and said that Kayne should “come and watch him have a fair go”, meaning a fight with Isaiah.

11. After this Taylor met up with Kayne at the intersection of Whitely Street and Arthur Street. The sun was starting to come up. The offender, Taylor, Kayne and Duygu proceeded to walk from Wellington High School to 79 Gobolion Street.

12. When they got to 79 Gobolion Street Taylor approached the front yard and Isaiah, Ezekiel and Bradley came out. Isaiah and the offender became involved in a verbal argument. Isaiah said to the offender “I’ll stab you and all your brothers”. During this argument the offender smashed a glass bottle that he was holding and Isaiah held a screwdriver. The offender and Isaiah continued a verbal exchange both walking along Gobolion Street to Arthur Street where they walked towards Gisborne Street. Kayne positioned himself between Isaiah and the offender to keep them separated. Once in Arthur Street Isaiah, Ezekiel and Bradley and Duygu turned around and walked back to 79 Gobolion Street.

13. Isaiah received Snapchat videos from the offender which he claimed included repeated threats by the offender to “stab his family” and “gang bang his ex-girlfriend”. He replied to the offender sending his own Snapchat videos. Taylor, Kayne and the offender walked back to the offender’s home via Barry Stanley’s house on Thornton Street. Taylor described the offender as drunk and that he had calmed down but he could tell the offender “had had enough”. Taylor and Kayne saw the offender enter his house and they then turned around to walk home.

14. Meanwhile back in Gobolion Street, CCTV footage timed at 5:59am showed Isaiah, Ezekiel and Bradley run back towards their house after the altercation in the street with the offender. At this point Isaiah was upset about the messages the offender had sent, and wanted to go to the offender’s house to fight him. Isaiah and another person attempted to drive to the offender’s house but the vehicle was stopped in Arthur Street. CCTV footage shows the car stopped at the corner of Gobolion and Arthur Streets and Duygu speaking to the occupants.

15. A little later, police conducting a patrol of the area stopped and spoke to Isaiah. Isaiah told the police he wanted to fight the offender as he had assaulted his brother Ezekiel a few days ago. Police noted that Isaiah and the other occupant appeared to be very intoxicated and told them to go home, which they did.

16. Once home Isaiah spoke to a neighbour Jai Brennan saying that he “had had some dramas” with the offender that morning and asked for a knife. Jai gave him a knife and Isaiah left the house.

17. Duygu had been pleading with Isaiah, Ezekiel and Bradley not to fight. She walked to her friend’s house, Tamika Richards, arriving at about 6:00am. She asked Tamika to assist in stopping Isaiah and his brothers from fighting. Tamika drove Duygu back to 79 Gobolion Street. When they arrived, they saw Isaiah Stanley talking to Mervyn Stanley.

18. Isaiah asked Mervyn for a lift to the top side of Wellington. Mervyn drove Isaiah to Elizabeth Street and Isaiah got out of the vehicle. Mervyn stated that at this time he saw the offender, Taylor Cubby and Kayne in the street. Mervyn said he had not seen Isaiah “revved up like that” before.

19. Duygu and Tamika followed Isaiah in Tamika’s vehicle fearing a fight was going to take place. They saw Isaiah get out at Elizabeth Street and saw he was holding a large 30cm hunting knife. Duygu and Tamika got out of their vehicle and grabbed Isaiah and convinced him to go home. He did that. On the drive back he was still receiving threatening messages from the offender on Snapchat.

20. Once home, Isaiah still wanted to go to the offender’s house so Ezekiel, Bradley and Jai got into the back seat of Tamika Richard’s car with Isaiah. Duygu was in the front passenger seat. They drove to near the corner of Maxwell and William Streets arriving at about 7:00am. The four males got out of the back seat and Isaiah left the knife he had obtained from Jai on the back seat. They then saw Kayne and Taylor walking along William Street and approached them. Kayne stated that Isaiah asked him to call the offender out so Kayne called the offender and told him to get his dad to come out the front and “that will be the end of it”.

21. Bradley, Isaiah and Ezekiel, Jai, Taylor and Kayne all walked up the street towards number 16 where the offender lived. Tamika drove her vehicle around the back and parked it a few houses down.

22. As the males approached the house, the offender came running from the house waving a knife around wildly. Jai Brennan said that the offender “looked mad and frantic like he was trying to scare them; not everyone just Isaiah and Brad”.

23. The offender waved the knife around in close proximity to Bradley who punched him to the head. At some point the offender made contact with Bradley with the knife causing two injuries to him, one to the left side of his neck and the other to the right side of his abdominal cavity. At this time no one in the vicinity of Bradley was armed with a weapon.

24. After seeing the offender with a knife, Isaiah ran to Tamika’s car and obtained the knife he left on the back seat and approached the offender, throwing his knife on the ground as he did. He punched the offender to the head. The offender and Isaiah became involved in a physical struggle on the ground which was ultimately broken up by other people at the scene.

25. While this was happening Bradley had been assisted to Tamika’s car and she drove him to Wellington Hospital. Isaiah, Ezekiel, Duygu and Jai ran from the scene. Jai took possession of the knife brought by Isaiah. He had been handed that knife by the offender’s father Kevin Stanley who was seen picking it up off the ground during the physical fight between Isaiah and the offender. Jai discarded the knife in a nearby vacant block.

26. Police were notified and attended the scene. They located the offender walking on William Street. They observed him to have bruising, abrasions and swelling to his face and blood on his clothing. He was conveyed to Dubbo Base Hospital by ambulance. He was placed under arrest while at Dubbo Hospital. He was released from hospital with a broken nose and was taken to Dubbo police station where he was introduced to the custody manager but time had to be allowed for him to recover from the effects of intoxication before he could be interviewed.

27. The offender told police that he had had about 18 beers and that he had “blacked out from the alcohol” and that after he got hit he “blacked out” and that he must have been hit from the side. He told police that he never came out with a knife saying “I don’t remember that”. He denied stabbing Bradley stating “All I remember is just being home and being in the kitchen and I can hear someone upfront so I walk out and the two of the boys were at the front of my house”.

28. Towards the end of the interview there was an interruption where interviewing police were told that Bradley had died at Dubbo Hospital. The offender became emotional and stated “Fuck. That’s ‘cause of me?” followed by repeated statements to the effect of “It wasn’t me bra”. Police concluded the interview due to the offender’s emotional state.

29. Bradley had arrived at Wellington Base Hospital at about 7:18am and was seen by an emergency department nurse. He told her that he had been stabbed with a knife but refused to identify who had done it. He was later transferred to Dubbo Base Hospital for surgery but was pronounced dead at 4:26pm that day.

30. A post-mortem identified the cause of death as the stab wound on the right side of the stomach just below the rib cage, indicating the depth of the wound was about 10cm, piercing rib cartilage, and travelling into the abdomen through the liver causing a small laceration to the top of the pancreas. The piercing of the liver caused major blood loss. The wound on Bradley’s neck was not considered life-threatening.

31. Before I proceed to refer to sentencing principles and their application to the offender, I wish to acknowledge and describe the very moving statements made by the family about Bradley, which so acutely described their devastation at the loss of this much loved young man.

32. Bradley’s mother Leanne described him as a loving and gracious son, who always saw the good in people, worked hard and was loved by all. Her utter devastation was palpable in the Court when she addressed the offender with her grief and anger. She mourns for everything he will miss – marriage, fatherhood and seeing his siblings and cousins grow up.

33. His partner Shannon spoke of a loving relationship with her soul mate and best friend. They had spoken of marriage and children. She feels crippled by grief and like she is drowning with a pain so deep she feels cold to others. She spoke of Bradley’s gentle nature, cheeky smile and ability to forgive.

34. Auntie Paula said this terrible loss had taken all the joy from her life. Bradley had been like a son to her. A protector and confidant, he was a man of integrity and self-worth, a worker and provider. She feels broken and sad.

35. Isaiah spoke of the loss of his big brother and best mate. He feels a pain he cannot describe. He tries to be strong but feels he has lost all trust and his family has been destroyed.

36. Letiah described her distress and struggles at losing her beloved cousin and describes the terrible toll on her own and the family’s physical and mental health because of the overwhelming grief and shock.

37. Abbey misses Bradley’s kindness and compassion and Kataya his caring and kind heart. Arthur Turaga spoke of a happy and loving brother, with a smile on his face that lit up every room. A kind, funny, giving and affectionate man.

38. At the sentencing hearing (and during the trial at Darlinghurst as well) a large group of family and friends sat quietly and respectfully and listened to each other and this Court’s proceedings that concerned a man they loved so much and miss so terribly. By that respect they honour Bradley and show how much they mourn his loss.

39. On behalf of the Court, I express my sincere condolences to the family and friends of Bradley Stanley.

Principles of sentence

40. The purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act1999 (NSW) (“the Sentencing Act”) are:

(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.

41. The maximum penalty for the offence of manslaughter is a term of 25 years imprisonment: s 24 Crimes Act 1900 (NSW). There is no standard non-parole period for this offence.

42. My task is to make findings about the objective and subjective facts relevant to sentencing the offender, consistently with the agreed facts. Any findings that are adverse to an offender must be arrived at beyond reasonable doubt: Cheung v R (2001) 209 CLR 1; [2001] HCA 67 at [14] per Gleeson CJ, Gummow and Hayne JJ. Any findings that favour the offender must be on the balance of probabilities.

The objective gravity of the offence

43. The offender offered to plead guilty to manslaughter on the basis of excessive self-defence. That plea was initially rejected but ultimately accepted in August 2022.

44. The law excuses offences, even fatal offences, if they were done in self-defence. Section 421 of the Crimes Act provides for such circumstances:

421   Self-defence—excessive force that inflicts death

(1)  This section applies if—

(a)  the person uses force that involves the infliction of death, and

(b)  the conduct is not a reasonable response in the circumstances as he or she perceives them,

but the person believes the conduct is necessary—

(c)  to defend himself or herself or another person, or

(d)  to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.

(2)  The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter.

45. Central to the sentencing exercise is the identification of the circumstances as the offender, (rightly or wrongly), perceived them: Smith v R [2015] NSWCCA 193 per Simpson JA with whom Leeming and Hamill agreed. The offender’s perception of the circumstances is relevant to the determination of what he believed was necessary to do in order to defend himself (s 421(1)(c)) and how far the conduct he engaged in was out of proportion with what was a reasonable response in those circumstances: s 421(1)(b).

46. The offender’s perception of the circumstances must include things that he knew and/or believed and/or perceived about the people outside his house that morning.

47. These matters are relevant to the assessment of the degree of unreasonableness, (or excessiveness), of his response.

48. I accept that the offender taking the knife from the kitchen and running out of the house with it was a reaction to the threat of the “two boys” approaching the home. It was reactive, spontaneous and not planned. Although the incident occurred in public, it was directly in front of the offender’s home and it was this very location that contributed to the perceived need on the offender’s behalf, to defend himself. He was seen waving the knife around. In doing so he stabbed Bradley in the abdomen and caused his death.

49. Given the variety of circumstances in which the offence of manslaughter can be established, it is best to avoid identifying where a particular offence of manslaughter falls on a hypothetical range of other manslaughters: Fuller v R [2022] NSWCCA 203 at [82] per N Adams J, Brereton JA and Dhanji J agreeing: Paterson v R [2021] NSWCCA 273 at [33] per Beech-Jones CJ at CL with whom Hulme J and N Adams J agreed.

50. Even the subcategory of excessive self-defence does little to narrow, let alone identify, the array of circumstances that situations can present and their relative criminality. Every case is so very different. A table of many “excessive self-defence” cases and the sentences given by judges of this Court was provided by the Crown. This table illustrates the many different circumstances and human behaviours that lead to the offences of manslaughter. It is difficult to obtain any real guidance from those other decisions but I have read them and taken them into account.

51. The taking of the life of another person is a very serious matter. Even taking into account the offender’s reaction to his sense of danger and threat that morning, a sentence of full-time custody must be imposed.

Subjective circumstances

52. The offender is almost 22 years old. He was 19 years old at the time of the offending. The following information is taken from the report of Ms Edwige, psychologist, who interviewed the offender in November 2022.

53. The offender is a Wiradjuri man through ancestral birthright of his mother and father. He grew up in Wellington. He has four older brothers, one of them sadly deceased from drug use, a younger brother and an older sister.

52. He attended the local primary and high school up to year 10. There were some behavioural issues according to the offender and he was suspended on occasion. He had some learning difficulties in some of his subjects although he loved sport and mathematics. After year 10 he started playing basketball. He was good at it and was noticed for his abilities and when he was 18 went to America for six weeks to play basketball with other high school students which was a good experience.

53. Both his parents worked, but unfortunately there was a volatile relationship with domestic violence at home, his mother stabbing his father on three or four occasions in the stomach requiring his hospitalisation. The offender described these events as traumatic. His parents were big drinkers and would fight when drunk.

54. The offender’s brothers and sister had been in jail while he was growing up. They all used drugs, heroin and crystal methamphetamine, and the offender felt traumatised watching them use drugs and visiting them in jail. There was an occasion when he walked into his brother’s bedroom and he was lying on the bed with a fit hanging out of his arm and the offender thought his brother was dead.

55. The offender was also exposed to violence in the community and significant drug and alcohol abuse.

56. There were complications when he returned from America. He broke up with his partner, his brother died, and his mother was diagnosed with cancer requiring surgery and she later had a stroke. The offender began drinking heavily and surrounded himself with others who wanted to do the same.

57. He had used cannabis from age 14 to 18 and began problematic drinking when he returned from America when he was 18. He describes using alcohol to escape his reality. He described symptoms of alcohol withdrawal. He had drug and alcohol counselling for the first time in early 2021 while in custody.

58. He worked as a labourer for a local tiler, Nigel Stone, during 2020. Mr Stone provided a letter to the Court that the offender was a good worker, reliable, honest and hardworking.

Background of disadvantage and mental health issues of the offender

61. Ms Edwige assessed the offender as suffering complex developmental trauma which has been left untreated and so he has misused substances to manage his trauma symptoms. His exposure to significant disadvantage has impacted on his social and emotional wellbeing, and he has evidenced emotional and behavioural dysregulation from an early age and has externalised this trauma through his conduct and risk- taking behaviours.

62. Ms Edwige concluded that at the time of the offence, the offender was suffering from a mental health impairment that was clinically significant, namely post- traumatic stress disorder and substance use disorder involving alcohol. She concluded that these conditions had an impact on the offender’s functioning at the time of the offence and that his complex developmental trauma and post-traumatic stress disorder (PTSD) impacted on his ability to regulate his behaviour and his emotions and affected his ability to make appropriate decisions and exercise good judgment.

63. Ms Edwige also offered the opinion that he is likely to find the custodial environment more stressful, triggering and difficult because of his mental health conditions, particularly the PTSD.

64. Sentencing principles relevant to sentencing offenders with mental health issues are set out in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] to [178] per McLellan CJ at CL:

“[177] Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing. They can be summarised in the following manner:

● 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.

● 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.

● 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.

● It may reduce or eliminate the significance of specific deterrence.

● 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. 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.

[178] I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence.” (citations omitted)

65. I also note the comments of Simpson J in Aslan v R [2014] NSWCCA 114 at [34] to the effect that none of these principles are absolute, but direct attention to considerations that experience has shown commonly arise in such cases.

66. I have carefully examined the report of Ms Edwige and the facts of the offending and concluded that there is a clear causal connection between the mental health conditions Ms Edwige has diagnosed and the actions of the offender that morning. Given that finding, I have also concluded that I should give less weight to specific and general deterrence than I otherwise would.

67. In this regard I note and agree with the comments of Rothman J (with whom Latham and Davies JJ agreed) in Tammer-Spence v R [2013] NSWCCA 297 at [36]:

“[36] In sentencing young offenders (or persons with a mental illness), the sentencing principles make clear that retribution may be of less significance and considerations of rehabilitation may be of more significance. Further, even in relation to retribution, the youth of an offender may be a mitigating factor.” (citations omitted)

68. I have also taken into account the counterpoint to those considerations that retribution and deterrence should not give way entirely, or even substantially to the interests of rehabilitation in the context of a young offender: JM v R (2012) 223 A Crim R 55; [2012] NSWCCA 83 per Simpson J at [108].

69. I am also of the opinion that the offender’s mental health will continue to negatively impact his time in custody and make it more onerous for him than if he did not have those mental health conditions.

Moral Culpability

70. In Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”) French CJ, Hayne, Gummow, Kiefel, Bell and Keane JJ stated that:

“[43]… The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

[44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”

71. I am required to determine whether the offender’s adversities and disadvantage reduces his moral culpability. As well as her assessment of the offender personally, the report of Ms Edwige includes some well traversed research that contextualises the events in the offender’s history and helps to provide a broader understanding of the ongoing and profound impacts of childhood deprivation and exposure to violence such as the offender had experienced.

72. I agree with and gratefully adopt the following observations by Yehia SC DCJ (as her Honour then was) in R v Tsingolas [2022] NSWDC 34 at [87] to [90] as to the role and use of that research:

“[87] ... To an extent greater than ever before, sentencing Judges are now assisted by a body of research into the impact of various forms of childhood disadvantage, deprivation and trauma that may have an ongoing and profound impact upon the individual.

[88] Sentencing Judges in the 21^st Century have the benefit of that assistance. The material provided is expert research and study that allows for a better understanding of the potentially profound impact of an individual’s childhood experiences upon, amongst other things, their capacity to mature, control impulse and self-regulate. The research complements the psychological, psychiatric and other evidence relied upon in the individual case, and can be of substantial assistance in explaining the offending conduct, assessing moral culpability and/or informing the appropriate penalty.

[89] This approach has been recognised and utilised in a number of cases in the Court of Criminal Appeal. In Kentwell V R (No 2) [2015] NSWCCA, Bathurst CJ and McCallum J (as she then was) agreed with the remarks of Rothman J when re-sentencing the appellant. Those remarks included references to research conducted by Professor Baumeister, which made it clear that extreme social exclusion will likely result in antisocial behaviour and most likely result in criminal offending, a factor relevant to that case.

[90] In Perkins v R [2018] NSWCCA 62, Fullerton J referred to the insidious effects of exposure to family and domestic violence on children in their formative years, and the potential for that exposure to play out in unforeseen ways as a young child develops from adolescence into adulthood, a matter “well researched and documented”. Her Honour referred to recognition of these effects and the potential for lasting harm, finding expression and application in a range of academic and forensic disciplines: [99] [100] [101] [102] [103].”

73. The Crown identified the following matters as relevant Bugmy considerations: domestic violence, family alcohol abuse, family drug abuse, death of a sibling to drug abuse, incarceration of family members and community drug and alcohol use and violence.

74. In considering these factors and the comments of the High Court in Bugmy, I am very mindful of the fact that many others in the community of Wellington, and indeed other places, have been exposed to the same or similar difficulties and have not offended and do not respond in the way that the offender did that morning.

75. I have concluded that these matters do reduce the offender’s moral culpability for his actions that morning, but there must remain reflected in the sentence I impose, an element of general and specific deterrence. All members of our community should be protected from violence and its consequences and there needs to be appropriate recognition of and retribution for the loss of Bradley to his friends and family.

The plea of guilty

76. As I have said, there was an offer to plead guilty to manslaughter on the basis of excessive self-defence at case conference when the matter was still in the Local Court prior to committal. That offer was not accepted until August 2022. The Crown acknowledged that in the circumstances the offender is entitled to the appropriate discount under s 25E(3)(a) of the Sentencing Act which is 25% and I have applied that discount to the sentence I will impose.

Aggravating and mitigating factors

77. Section 21A of the Sentencing Act requires me to take into account certain aggravating and mitigating factors.

78. It is an aggravating factor that the offender was the subject of conditional liberty at the time of the offence because of the ICO imposed in September 2020.

79. As noted by the Crown, use of violence and use of a weapon, whilst present, are elements inherent in the offence and so not aggravating factors.

80. Senior counsel for the offender submitted that I should take into account the following mitigating factors:   

1. That the offender has good prospects of rehabilitation: s 21A(3)(h);

2. That the offender has shown remorse: s 21A(3)(i).

81. In order for me to find that the mitigating factor of the offender’s remorse exists, I must be satisfied that the offender has provided evidence that he has accepted responsibility for his actions and acknowledged the loss caused by his actions. I have no doubt at all that that is the case, and that the offender fully appreciates the enormity of what he has done and that he is deeply and truly remorseful.

82. He has consistently demonstrated remorse for what occurred. Firstly, during the interview with police shortly after his arrest. Notwithstanding his denial that he had used a knife, when he was advised of the death of his cousin the offender was distraught. His comment “Fuck. That’s cause of me?” and his visible distress are the first demonstrations of his remorse as to what had happened and his role in it. I accept that any comments to the effect of “it wasn’t me bra” should properly be construed as his disbelief as to what was unfolding and his horror at what he had caused.

83. The offender’s distress at learning of the passing of his cousin was evident during the course of the trial when his interview with the police was played for the jury. His difficulty in coming to terms with what had happened and his role in it was demonstrated in a visceral way, not by, as this Court sometimes hears, empty and insincere words of apology. This is in my view genuine and deeply felt contrition of the type described by Spiegelman CJ in R v Thompson;R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [117] to [118].

84. The offender’s contrition and remorse is also demonstrated by his consistent preparedness to plead guilty to the count of manslaughter and the fact that he maintained that position, despite the way that the trial unfolded.

85. The offender has expressed to the author of the psychological report, Ms Edwige how he feels about his offending. It is clear that his distress about his conduct that led to the death of his cousin is constantly on his mind. Ms Edwige records the offender as having said: “Every day I wish I could have done things differently. Wish it had never happened. It’s too hard to talk about”. I accept that this is something about which he regularly ruminates, and no doubt will, for the rest of his life.

86. The character references before the Court speak of a young man who is well regarded by those who knew him in his local community. They were able to see qualities in him that include being respectful and hardworking. I do not think that by any stretch that means that the offender was perfect.

87. Of significance however is the fact that the offender has a very limited criminal history. He has only one prior entry on his record and this is consistent with what he told Ms Edwige about associating with peers who were involved in criminal activity when he was younger and not wanting to be like them. The fact that the prior offence occurred in 2019 and on the face of the result, appears to have involved the consumption of alcohol, is also consistent with the narrative provided to Ms Edwige as to his excessive drinking from the age of 18.

88. There is clearly a history of very problematic alcohol use, but he has demonstrated insight into that and the problems it causes. Ms Edwige considered the offender as someone with positive prospects of rehabilitation, provided that he is able to access the types of treatment and support he needs in the community. Mr and Mrs Stone have provided references noting the offender’s intelligence and good work ethic. I accept that the offender has real insight into the carnage he has caused Bradley’s family and friends and to his own family and friends by his actions.

89. I have concluded that the offender has good prospects of rehabilitation and he is unlikely to reoffend.

Comparative cases

90. Both the Crown and counsel for the offender drew my attention to various cases that bore some similarities but many differences to the circumstances here. I have read them and considered them but concluded that they provide little assistance to me given the very particular circumstances of this case.

Special circumstances

91. Senior counsel for the offender submitted that a finding of special circumstances should be made pursuant to s 44(2B) of the Sentencing Act and that I should vary the usual ratio of parole to head sentence to provide for a longer period on parole. The basis submitted was the offender’s youth, this is his first time in custody and he needs parole support for reintegration into the community, particularly regarding alcohol use and his mental health conditions and associated needs for treatment and counselling.

92. I find there are special circumstances for the above reasons. There is also a need for support to reintegrate into the community and set up and maintain supports and structure to ensure a sustainable supported social setting, noting the particular features here involved causing the death of a young man who was part of the offender’s own extended family and social groups.

Pre-sentence custody

93. In September 2020 the offender was placed on an Intensive Correction Order of 9 months length for affray, involving fighting near a pub in Wellington around 11:00pm on the night of 22 November 2019. It was a condition of the ICO that amongst other things, he must not commit any other offences and must abstain from alcohol. Because of the offending on 2 January 2021, the ICO was revoked and the offender was sentenced to 5 months and 3 days imprisonment expiring on 23 June 2021.

94. The Crown submits that given the circumstances, the offender’s sentence for manslaughter should commence on a date chosen by the Court between 3 January 2021 and 23 June 2021.

95. The offender has spent 2 years and 39 days in custody since his arrest on 3 January 2021. The revocation of the ICO was because of this offending. I do not in those circumstances consider it necessary in order to reflect the criminality of the offences, to accumulate the sentence I will impose on top of that revocation. I accept the submission of senior counsel for the offender that it is appropriate to commence the sentence on 3 January 2021. That time will be taken into account as time served.

96. Synthesising these findings and principles, I would commence with a starting point of 8 years, which is reduced by 25% for the early guilty plea. To give effect to my finding of special circumstances, but still reflect the relevant criminality, I have adjusted the proportion of the sentence that must be served in custody, and set a non-parole period of 3 years and 6 months. I will now formally impose sentence. Please stand Shelby Stanley.

Conclusion and sentence

97. For the offence of manslaughter I impose a sentence of imprisonment of 6 years commencing 3 January 2021 and expiring on 2 January 2027, with a non-parole period of 3 years and 6 months commencing 3 January 2021 and expiring on 2 July 2024.

97. The offender will become eligible to be released on parole on 2 July 2024.

98. I am obliged to tell you of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to “serious offences” including the offence for which you have been sentenced.

99. In summary, this means that the State can apply to the Supreme Court for an order that you continue to receive supervision or be held in detention at the end of your sentence if the Court considers you would be a “high risk offender” who poses an unacceptable risk of committing a serious offence.

100. It is therefore in your interests to engage in rehabilitation opportunities that may be offered to you in the course of your sentence.

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Amendments

16 May 2023 - Par [1]: typographical error

Par [31]: typographical error. Corrected "acutely"

Par [43]: grammar correction

Par [49]: Judges' titles and punctuation corrected

Par [53]: grammar and punctuation corrected

Par [56]: typographical error

Par [59]: grammar corrected.

Decision last updated: 16 May 2023