R v Tarrant - [2018] NSWSC 774

Supreme Court

New South Wales

Medium Neutral Citation: R v Tarrant [2018] NSWSC 774
Hearing dates: 4 May 2018
Date of orders: 29 May 2018
Decision date: 29 May 2018
Jurisdiction: Common Law
Before: Johnson J
Decision:
For the manslaughter of Alois Rez at Dubbo on 29 July 2013, the Offender is sentenced to imprisonment for a period of eight years comprising a non-parole period of five years commencing on 5 November 2015 and expiring on 4 November 2020 with a balance of term of three years commencing on 5 November 2020 and expiring on 4 November 2023.
The earliest date upon which the Offender will be eligible for release on parole is 5 November 2020.

Catchwords: CRIMINAL LAW – sentence – manslaughter – partial defence of substantial impairment by abnormality of mind– chronic depression, post-traumatic stress disorder and dependent personality disorder - substantial history of intimate partner violence – killing of abusive and controlling partner – level of planning in killing carried out by intended new partner of Offender with her assistance – no prior criminal history - early plea of guilty – assistance to authorities – remorseful – good prospects of rehabilitation
Legislation Cited: Crimes (High Risk Offenders) Act 2006
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Cases Cited: Catley v R [2014] NSWCCA 249
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Director of Public Prosecutions (Vic) v Williams [2014] VSC 304
Liyanage v Western Australia (2017) 51 WAR 359; [2017] WASCA 112
Merrick v R [2017] NSWCCA 264
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
Potts v R (2012) 227 A Crim R 271; [2012] NSWCCA 229
R v Blacklidge (Court of Criminal Appeal, 12 December 2015)
R v Cooper (Court of Criminal Appeal, 24 February 1998)
R v Dally (2000) 115 A Crim R 582; [2000] NSWCCA 162
R v Fiona Barbieri [2014] NSWSC 1808
R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377
R v Green [1999] NSWCCA 97
R v Hamid (2006) 164 A Crim 179; [2006] NSWCCA 302
R v Hill (1981) 3 A Crim R 397
R v Jenbare [2016] NSWSC 1317
R v Keceski (Court of Criminal Appeal, 10 August 1993)
R v MD (2005) 156 A Crim 372; [2005] NSWCCA 342
R v Peters [2002] NSWSC 1234
R v Roff [2015] NSWSC 1853
R v Runjanjic; R v Kontinnen (1991) 56 SASR 114
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
R v SZ (2007) 168 A Crim R 249; [2007] NSWCCA 19
R v Tarrant [2016] NSWSC 892
R v Todd (1982) 2 NSWLR 517
R v TP [2018] NSWSC 369
R v Wilkinson (No. 5) [2009] NSWSC 432
Roff v R [2017] NSWCCA 208
Tarrant v R [2018] NSWCCA 21
Ukropina v R [2016] NSWCCA 277
Villalon v R [2015] NSWCCA 229
Texts Cited: ---
Category: Sentence
Parties: Regina (Crown)
Sarah Renae Tarrant (Offender)
Representation:
Counsel:
Mr PJ McGrath SC; Ms G Turner (Crown)
Ms JS Manuell SC; Mr IH Nash (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s): 2013/342004
Publication restriction: ---

REMARKS ON SENTENCE

JOHNSON J: The Offender, Sarah Renae Tarrant, appears for sentence for the manslaughter of Alois Jon Rez at Dubbo on 29 July 2013. Following a jury trial, the Offender was found not guilty of murder, but guilty of manslaughter by reason of substantial impairment by abnormality of mind under s.23A Crimes Act 1900.
A sentencing hearing proceeded before me on 4 May 2018 after which the Offender was remanded for sentence today.
At the heart of this case is a complex and potent mix of strong human feelings and deep human failings. One man is dead and the location of his body is unknown. Another man is in prison serving a lengthy sentence for murder. The Offender, who is both a criminal and a victim, is to be sentenced for the crime of manslaughter.

Procedural History From 2013 to 2018

This matter has a complicated history which I should outline before moving to issues for determination on sentence.
What follows is drawn from a Statement of Agreed Facts Concerning Procedural History tendered jointly by the parties at the sentencing hearing.
On 2 August 2013, Alois Jon Rez (who was 33 years old at the time of his death) was reported missing by his mother, Zonia Rez, at Dubbo Police Station. Shortly thereafter, a police investigation commenced.
On 9 August 2013, the Offender (then aged 24 years) and Raymond Roff (then aged 51 years) were charged with having murdered Mr Rez on 29 July 2013. The body of Alois Rez has not been found.
Both the Offender and Mr Roff were initially refused bail.
The Offender was subsequently granted bail on 16 January 2014, having spent five months and seven days in custody.
The Offender’s matter was mentioned in the Dubbo Local Court on 14 May 2014. On that day, there were discussions between defence counsel and the prosecution solicitor about the prospect of the Offender making a plea offer.
On 21 May 2014, the Offender wrote to the Crown and offered to plead guilty to manslaughter, conditional upon her giving evidence against Mr Roff. No basis for the manslaughter plea was enunciated in the Offender’s offer, nor the factual basis of such a plea, although reference was made to evidence in the prosecution brief relating to the Offender’s depression. Although the brief was not complete at that stage, the Offender’s legal representatives were making enquiries concerning the availability of psychiatrists with expertise in “battered woman syndrome”, a term to which I will return later in these remarks.
The Offender’s offer of 21 May 2014 was rejected by the Crown.
On 17 December 2014, the matter proceeded by way of three-day committal proceedings before the Local Court during which 14 witnesses were called upon the application of the Offender. The calling of witnesses at the committal proceedings was directed to obtaining evidence of the Offender’s mental state at the time of the death of the Alois Rez. The Offender was committed for trial on 19 December 2014. At the time of committal, the Offender formally indicated that she was still willing to plead guilty to manslaughter although her offer had not been accepted by the Crown.
The Offender’s matter remained in the Supreme Court Arraignment List between 6 March and 3 July 2015.
On 30 March 2015, the Offender’s solicitor served on the Crown a report dated 27 March 2015 from Dr Carolyn Quadrio, psychiatrist. This report was relied upon ultimately in the Offender’s trial with respect to the issue of substantial impairment.
On 27 April 2015, the Offender’s solicitor wrote to the Crown and formally offered a plea of guilty to manslaughter on the basis of substantial impairment. The Crown replied asking for the factual basis for the plea and, on 9 June 2015, the defence responded.
On 3 July 2015, at arraignment in the Supreme Court, the Crown advised that the defence plea offer was rejected. The Offender was formally arraigned and pleaded guilty to manslaughter, which was not accepted in full satisfaction by the Crown.
Mr Roff subsequently made a successful application for a separate trial: R v Roff [2015] NSWSC 1853.
The trial of the Offender proceeded first. At the commencement of her trial on 21 March 2016 before Fagan J, and in the presence of the jury, the Offender pleaded “not guilty to murder, but guilty to manslaughter”. This plea was not accepted by the Crown in satisfaction of the indictment.
The trial proceeded and, on 14 April 2016, the jury acquitted the Offender of murder but found her guilty of manslaughter.
On the same day (14 April 2016), Mr Roff’s trial commenced before Fagan J and a jury. On 13 May 2016, the jury returned a verdict of guilty to murder.
The Offender was called as a Crown witness in the trial of Mr Roff.
On 19 August 2016, the Offender was sentenced for manslaughter to imprisonment for 10 years and eight months with a non-parole period of eight years commencing on 5 November 2015: R v Tarrant [2016] NSWSC 892.
The first instance sentences imposed by Fagan J on both the Offender and Mr Roff were the subject of successful appeals to the Court of Criminal Appeal.
On 30 August 2017, the Court of Criminal Appeal allowed an appeal and resentenced Mr Roff for murder to imprisonment for a non-parole period of 18 years and nine months, with a balance of term of six years and three months: Roff v R [2017] NSWCCA 208.
In relation to the Offender’s appeal, the Court of Criminal Appeal on 23 February 2018, set aside the sentence and orders made by Fagan J and remitted the matter for sentence: Tarrant v R [2018] NSWCCA 21.
It was against this background that the remitted sentencing hearing came before me on 4 May 2018. At the request of the Court, the parties provided a number of helpful documents which were tendered at the sentencing hearing. As I had not presided at the Offender’s trial, this assistance to the Court was valuable for me to understand the factual, medical and legal issues addressed at the trial of the Offender. Nearly all areas were the subject of agreed summaries of the facts and evidence.
It was a considerable advantage that Senior Counsel appearing for the Crown and for the Offender at the sentencing hearing had appeared at the trial of the Offender. Of course, it remains a matter for the Court to consider matters relevant to the determination of sentence.

Facts of the Offence

Agreed Facts of the Offence were placed before the Court on sentence. What follows is drawn principally from the summary of the facts contained in the Crown written submissions which were agreed subject to certain areas of clarification which were, in turn, accepted by the Crown.
In 2013, Mr Roff lived at an address in Fitzroy Street, Dubbo. Mr Roff was single, his wife having died of cancer in 2012. He had adult children, some also living in Dubbo. As mentioned earlier, he was 51 years old in August 2013.
The Rez family had originally lived in Dubbo. Mr Roff had been family friends with the Rez family through Zonia Rez, the mother of Alois Rez.

Relationship Between Alois Rez and the Offender

The Offender was the partner of Alois Rez. She had met Mr Rez in about 2004 when she was 15 and he was about 24 years old. She ran away from home and started living with Mr Rez, much to her family’s distress. By the age of 16 years, the Offender had conceived her first child to Mr Rez. By 2013, when the Offender was 22 years of age, she had four children.
There was a great deal of evidence at the trial of the Offender concerning the history and dynamics of the relationship between the Offender and Mr Rez, directed to the question of her state of mind at the time of the offence. This evidence helped found the basis of the manslaughter verdict, particularly by way of confirmation of the history the Offender gave to the psychiatrists on which their expert opinions were based.
I will refer to evidence concerning the relationship between the Offender and Mr Rez later in these remarks. However, what follows is an accurate summary of the evidence at trial. Put shortly, the Offender was chronically depressed throughout her relationship with Mr Rez, a much older man on whom she was perversely dependent. Mr Rez was a physically and psychologically dominating figure in the relationship. He was much larger physically and had been the Offender’s partner since she was a teenager. Despite never actually working, he contributed little practical assistance to running the household. The evidence demonstrated that he was lazy and domineering. Nearly all of the domestic work, including attending to the needs of four children, was done by the Offender who had cut herself off from her own family and any independent friendships.
There was evidence at the Offender’s trial that Mr Rez was physically and emotionally abusive towards her throughout the relationship. She had suffered at least two diagnosed incidents of post-partum depression following pregnancies. The Offender lived in a state of post-traumatic stress.

Alois Rez and the Offender Move to Dubbo in 2012

Mr Rez moved his mother and his family, including the Offender, back to Dubbo in May-June 2012. The Offender knew no one in Dubbo, and became even more socially isolated.

Mr Roff Meets the Offender and a Relationship Develops

In Dubbo, Mr Roff recommenced his regular friendship and contact with the Rez family and met the Offender.
Mr Roff was a handyman and worked at a local motel. He visited the Rez house regularly for coffee and conversation. In late 2012 and early 2013, he was also occasionally assisting Mr Rez and the Offender with renovations to their premises in Alfred Street, Dubbo. In those circumstances, Mr Roff became friendly with the Offender.
Unlike Mr Rez, Mr Roff treated the Offender decently. He showed an interest in her, talked to her, and assisted her with the children in small ways while at the house.
A friendship developed between Mr Roff and the Offender. The Offender’s attraction to Mr Roff has been explained by Dr Quadrio and Dr Yvonne Skinner, the psychiatrist retained by the Crown. The friendship between the Offender and Mr Roff turned into a sexual and romantic affair. Each professed their love for the other, and their desire to live with each other and with the Offender’s children, and to have more children together. They kept their relationship a secret.
The Offender gave evidence to the effect that, at some time in 2013, there had been a discussion with Mr Roff in which she told him that she wanted Mr Rez “gone”. It appears from the evidence that the Offender did not intend to convey at that time that she wanted Mr Rez dead or wanted him killed. However, as will be seen, later events moved in that direction.

Events From May 2013 to Early July 2013

In about May 2013, the Offender had seen some Facebook messages between Mr Rez and a friend of his, Amanda Vine, which suggested they were planning on getting married. The Offender believed that Mr Rez was going to take the children and leave her to pursue a relationship with Ms Vine in the near future. The possible loss of her children caused her considerable distress.
Despite the physical and mental abuse directed to her in the relationship, the Offender would not or could not leave Mr Rez. This was undoubtedly due to the constellation of mental and social factors arising out of her relationship summarised by the psychiatrists. The Offender had a chronic depressive disorder and suffered diagnosed and undiagnosed bouts of post-partum depression. She lived in a state of post-traumatic stress in circumstances often described as “battered woman syndrome”.
This term is not appropriate as the circumstances which it describes are not confined to relationships between men and women: Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at 370-374 [158]-[163]; R v Peters [2002] NSWSC 1234 at [72]-[77].
A suggested but longer term is “the psychological impact of prolonged exposure to domestic violence”: Liyanage v Western Australia (2017) 51 WAR 359; [2017] WASCA 112 at 380 [82]. For the balance of these sentencing remarks, I will use the term “intimate partner violence”: R v TP [2018] NSWSC 369 at [39]. Significantly, the Offender also suffered a personality disorder with dependent traits, which serves to explain her inability to leave Mr Rez.
In early July 2013, Mr Roff gave the Offender an ultimatum to leave Mr Rez or he would end their relationship. Mr Roff said that “unless they were walking down the street, hand in hand, in three weeks time”, he would leave her.
Around this time, the Offender discovered she was pregnant with a child she hoped was that of Mr Roff, but could have been Mr Rez’s child. She told Mr Roff about her pregnancy but did not tell Mr Rez.

The Events of 23 and 24 July 2013

Late on the night of 23 July 2013, police were called to the Rez property in Alfred Street, Dubbo in respect of a reported domestic dispute in which a woman was being physically assaulted. Police attended and spoke with the Offender and Mr Rez. The Offender denied that any domestic assault or incident had taken place. As it happened, such an incident had occurred where Mr Rez assaulted the Offender, but she was not able or prepared to tell the police about it.
Police were able to identify Mr Roff as the informant for the incident and spoke with him at his home in Fitzroy Street, Dubbo. During the course of their inquiries with Mr Roff, police noticed that the Offender was listed in Mr Roff’s mobile phone as “My hot young thing” or some similar words.
The Offender explained in evidence that she was in fact assaulted by Mr Rez because he suspected that she and Mr Roff were having an affair.
As a result of the incident, Mr Roff agreed he would no longer visit the house and informed Mr Rez of this. This upset the Offender. She had already received Mr Roff’s ultimatum. She was pregnant (she hoped to Mr Roff).
The incident also upset Mr Roff. He thought the Offender had made him look foolish, and had lied to him about the assault. He expressed his displeasure to her. An inference can and ought be drawn that the Offender thought she would lose Mr Roff because of her expressed inability or unwillingness to leave Mr Rez, and Mr Roff’s inability to understand her reasons for this.

The Genesis of the Plan to Kill

The incident on 23 July 2013 was suggested by the Offender as being, in effect, the catalyst for her deciding that the only way she could be with Mr Roff was if Mr Rez was “gone”.

The Offender’s Psychiatric Condition

At this time, the Offender was diagnosed with severe depression by her general practitioner. She was referred to a specialist and was prescribed medication but did not follow up either.
According to the evidence of Dr Skinner, the Offender was suffering at this time from persistent depressive disorder and a personality disorder with dependent traits. According to Dr Quadrio, chronic depressive disorder and chronic/complex post-traumatic stress disorder were referable to a background of “battered woman syndrome” or “intimate partner violence”. I will refer to the psychiatric evidence in a little more detail later in these sentencing remarks.

The Plan to Kill Alois Rez

Over the next few days, Mr Roff handed the Offender sleeping tablets and told her that she had to make a choice - whether she loved Mr Rez or him. The tablets were to be administered to Mr Rez to knock him out so that Mr Roff could come into the house and kill him. The arrangement was made for this to occur on the night of Sunday 28 July 2013, at a time when Zonia Rez, who lived with Mr Rez and the Offender, was away from Dubbo in Sydney.
From the time Mr Roff handed the sleeping tablets to the Offender, he appears to have made plans to kill Mr Rez and then communicated them to the Offender. However, he did not tell the Offender how he proposed to kill Mr Rez nor where he planned to dispose of the body.
The Offender and Mr Roff were in regular contact during this time. Various text communications between Mr Roff and the Offender leading up to the evening of Sunday 28 July 2013 were explained by the Offender in her evidence as guarded references to this plan to kill Mr Rez.
The Offender was the only source of the evidence of the formation of the plan to kill Mr Rez. To the extent that her own evidence was against her interests, implicating herself in the plan to kill the father of her children whilst he slept in his (and her) bed, it was credible and was no doubt accepted by the jury at Mr Roff’s trial.

Alois Rez is Reported Missing

On Friday 2 August 2013, after her return from Sydney, the mother of Mr Rez reported him missing, there having been no contact from him since 28 July 2013. The Offender had not reported him missing to anyone, nor remarked on or complained of his absence.
Police attended the house in Alfred Street, Dubbo and spoke with the Offender. Mr Roff was also present. Police located Mr Rez’s wallet and his gold watch at the house. Police also noticed brand new black bed sheeting in his bedroom, as well as a new doona still in its original packaging.

Business records from the Target store at Dubbo showed that the Offender purchased this bedding material on the morning of Monday 29 July 2013. She also returned a mobile telephone to the store, claiming it was faulty.
Interviews and statements were arranged with the Offender, Zonia Rez and Mr Roff for that evening at the police station.

The Offender’s Initial False Account to Police

The Offender was interviewed electronically as a volunteer whilst under caution. During this interview, the Offender said that she last saw Mr Rez on the Sunday night in his bedroom. She told police about, and elaborated on, alleged threats by the Rebels Outlaw Motorcycle Gang (“OMCG”) to Mr Rez. The Offender said she did not sleep in the bedroom with Mr Rez that night as the children woke and she slept on the lounge with them so as to not wake him. She said that on the following day, their son went into the room and told her that Mr Rez was not there. She looked in the room and noticed that all the bed sheeting was missing and that the window was open in their room.
The Offender told police that she took a mobile phone back to the Dubbo Target store on Monday 29 July 2013 and purchased brand new bed sheeting. She gave no reason as to why she did not report Mr Rez missing other than her fear from the threats from the Rebels OMCG.
The Offender claimed to police that she loved Mr Rez despite the ups and downs in their relationship. She, of course, did not mention any relationship with Mr Roff.
The lies told by the Offender to police during this stage of the investigation were consistent with Mr Roff’s lies to police, and were part of the agreed “cover-up” they had decided upon to explain away the disappearance of Mr Rez.

The Offender’s Mobile Phone

Police attended the Target store and seized the mobile phone returned by the Offender. Police were able to recover a large number of text messages between the Offender and Mr Roff transmitted during the night of 28 July and the early hours of Monday 29 July 2013.
These communications were at the heart of the Crown case against both the Offender and Mr Roff. They demonstrated not only the romantic and sexual relationship between the Offender and Mr Roff but, contrary to their statements to police, they also provided cogent evidence admissible against each of them of their plan to kill Mr Rez that night.

Mr Roff and the Offender’s Communications on 28-29 July 2013

The messages, when read together and in context, revealed the drugging of Mr Rez by the Offender with the knowledge of Mr Roff, and the plan for Mr Roff to come to the house once Mr Rez has succumbed to whatever had been administered to him.
The Offender messaged Mr Roff (at 9.57 pm on 28 July 2013) that “he has just gone to the toilet stumbling. I’m hoping he drops off soon. I’m sick of waiting”. Mr Roff replied “He will. Has Hamish [a reference to a boarder staying at the house] gone to bed yet”. The Offender said that “I would have thought he would have dropped off by now with what he has had plus 4 panadeine extra”.
The Offender said to Mr Roff (at 10.09 pm) “I’m waiting for him to go to sleep so when he does I can message you straight away”.
Before Mr Roff came to the house, he checked (at 1.16 am on 29 July 2013) “Is he in a deep sleep and is the tv on and is the front light turned off and is the door open”. Mr Roff confirmed that the security camera must be turned off and he needed some “old rags”. Eventually, he confirmed that he was on his way shortly before 2.00 am.
Significantly, there was a break in the messaging until almost 3.30 am on 29 July 2013. In this period, Mr Roff came to the Offender’s house, killed or incapacitated Mr Rez in his bed while the Offender and her children were in another room, and then, with the Offender’s assistance, wrapped his body in a sheet and dragged it outside where they placed it in the back of his vehicle. Mr Roff then drove the body away and disposed of it at an unknown location during the remainder of the morning.
Shortly before 3.30 am, on 29 July 2013, the Offender texted Mr Roff “I’m hoping and praying that no one was watching or peeking through their windows or blinds with the gates and the car”. Mr Roff replied “We will know soon enough did you hose the drive”. The Offender texted Mr Roff at 3.39 am “Have now don’t know whether its all gone or not as I couldn’t see properly”. Mr Roff replied “That’s ok no need to report missing straight away” and the Offender replied “I thought we weren’t going to”.
In addition to confirming motive (the sexual relationship between Mr Roff and the Offender) and their intention to have the deceased disappear (Mr Roff’s message at 3.48 am “no need to report [him] missing straight away”), the SMS messages indicated that the Offender was pregnant, probably to Mr Roff (the Offender messaged at 9.43 am on 29 July 2013, “I can’t get the ultrasound done until the 16th of next month”) and that their relationship was still strong (“I need this like you need this”) and the various exchanges of “love” and affectionate terms, as well as references to engaging in “pillow talk” and “dirty talk”.
It is apparent from the SMS messages that the intent of Mr Roff and the Offender was to kill, rather than merely incapacitate or injure, Mr Rez.
After completion of the police investigations in the week after Mr Rez was reported missing, the Offender was arrested. She agreed to be interviewed again. She attempted initially to maintain denials of a relationship with Mr Roff and any involvement in Mr Rez’s murder.
When confronted with evidence of the relationship and messages between her and Mr Roff on the night of his murder, she admitted involvement in his disappearance, but falsely attempted to blame Mr Roff alone for killing Mr Rez, claiming that she thought the plan was only for Mr Roff to scare Mr Rez.

The Offender’s Evidence at Her Trial

The Offender gave evidence at her trial about the development of her relationship with Mr Roff and the events leading to the plan to kill Mr Rez so she and Mr Roff could be together. The Offender gave evidence that explained all the messages in the only possible context in which they could be sensibly understood - a plan to kill Mr Rez pursuant to which she crushed up and administered the sleeping tablets to him with the dinner she cooked for him that night. She then waited for the tablets to take effect. This took longer than expected.
The boarder, Hamish Lowe, unexpectedly returned home that night. The plan had to go ahead. The Offender eventually advised Mr Roff that the time was right.
Mr Roff came to the house whilst the Offender waited in the lounge room and killed or disabled Mr Rez in the bedroom.
Although she did not see Mr Rez being killed, she heard noises coming from the bedroom. She went outside the house and saw Mr Rez’s body on the driveway next to Mr Roff’s utility covered in a sheet. The Offender helped Mr Roff lift up the body which was placed in the back of the utility before Mr Roff drove away.
In the days after the murder, the Offender and Mr Roff tried to carry on as normal, and advanced the false suggestion of involvement of the Rebels OMCG in Mr Rez’s disappearance.

Body of Alois Rez Never Found

The body of Mr Rez has never been found.
Mr Roff denied killing Mr Rez. As a result, no evidence emerged at his trial concerning the location of the body.
At a time when the Offender was assisting police, she asked Mr Roff where the body was located, but no answer was forthcoming from him.
To this day, the Offender has no knowledge of the location of the body of Mr Rez.

Psychiatric Evidence Concerning the Offender and Substantial Impairment

As the Court of Criminal Appeal observed in Tarrant v R at [76], the jury had expert evidence from Dr Skinner and Dr Quadrio with it being common ground that each psychiatrist supported a finding of “substantial impairment” for the purposes of s.23A(1) Crimes Act 1900. Neither psychiatrist was cross-examined. The trial Judge made clear in summing up to the jury that, having heard evidence going to the primary facts, it was a matter for the jury to make their minds up as to whether the facts were as the psychiatrists had stated and whether the facts the jury found to have been established supported the psychiatric opinions. By its verdict, the jury demonstrated that they must have substantially accepted the psychiatric opinions because there was no other evidence upon which they could have reduced the conviction of the Offender to manslaughter.
Reference should be made to the partial defence of substantial impairment by abnormality of mind contained in s.23A Crimes Act 1900. Section 23A(1) provides:

“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.
(2)    For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible.”

The onus lay upon the Offender to prove these matters on the balance of probabilities: s.23A(4). It was for the Offender to establish that she suffered from an “underlying condition” which means a pre-existing mental or physiological condition, other than a condition of a transitory kind: s.23A(8).
It may be taken that the jury was satisfied that the Offender was substantially impaired in each of the three respects referred to in s.23A(1) - her capacity to understand events, or to judge whether her actions were right or wrong or to control herself: Tarrant v R at [74]-[77].
The jury was also satisfied on the balance of probabilities that the impairment in the Offender’s case was so substantial as to warrant her liability for murder to be reduced to manslaughter: s.23A(1)(b). The medical opinion evidence was not admissible on this issue: s.23A(2). This was an issue for the jury alone to be undertaken on the basis of community values as to levels of culpability. This was a quintessential jury issue: Potts v R (2012) 227 A Crim R 271; [2012] NSWCCA 229 at 224 [33]-[35].
The context in which each psychiatrist examined the Offender and subsequently provided multiple reports was set out in an Agreed Statement of Facts (Trial Exhibit P). Relevant parts of each of the psychiatrists’ reports were read to the jury and edited copies of the reports containing the portions which had been read were tendered (Trial Exhibit Q).
In her report of 27 March 2015, Dr Quadrio diagnosed the Offender as having chronic depressive disorder as well as symptoms of chronic and complex post-traumatic stress disorder. A detailed description of these psychiatric conditions was provided to the jury.
There was evidence before the jury (which was accepted) concerning the interrelationship between “intimate partner violence” and post-traumatic stress disorder. The evidence, which I accept, stated that when “intimate partner violence” manifests as post-traumatic stress disorder, it consists of the following symptoms:

re-experiencing the battering as if it were reoccurring even when it is not;

attempts to avoid the psychological impact of battering by avoiding activities, people and emotions;

hyperarousal or hypervigilance;

disrupted interpersonal relationships;

body image distortion or other somatic concerns; and

sexuality and intimacy issues.

Additionally, repeated cycles of violence and reconciliation can result in the following beliefs and attitudes:

the abused person believes that the violence was his or her fault;

the abused person has an inability to place the responsibility for the violence elsewhere;

the abused person fears for his or her life and/or the lives of his or her children (if present);

the abused person has an irrational belief that the abuser is omnipresent and omniscient.

In her report dated 22 May 2015, Dr Skinner diagnosed the Offender with persistent depressive disorder and a personality disorder with dependent traits. Dr Skinner described persistent depressive disorder as a state of chronic low-grade depression that has been present for at least two years. In the case of the Offender, Dr Skinner considered that the disorder had probably been present since adolescence and had probably fluctuated in severity.
With respect to personality disorder, Dr Skinner observed that the Offender came from a background of emotional deprivation and abuse and had not developed the independence, autonomy and coping skills that would have been expected of a woman of her age.

Summary of Evidence Concerning History of the Relationship Between the Offender and Alois Rez

As the Court of Criminal observed in Tarrant v R at [82], the history upon which the psychiatrists relied for the purpose of expressing opinions was supported by evidence given at the trial. It is appropriate to set out at least parts of this history which is more fully summarised in a document entitled “Agreed Facts as to the Psychiatric Diagnoses and the Offender’s History upon which the Diagnoses were Based” which was part of the material tendered at the sentencing hearing.
The Offender was born in April 1989. She has two elder brothers. The relationship of the Offender’s parents was a violent one. Her parents separated when she was about six years old. All contact between the Offender and her father ceased when she was about eight years old following his conviction and imprisonment for sexually assaulting a stepdaughter. The Offender’s mother commenced a relationship with another man whom she married in 1998 when the Offender was nine years old. The Offender had some contact with her father from the age of 12 or 13 years which was infrequent.
The Offender met Alois Rez in May or June 2004 when she was in Year 10. Two or three weeks after she met him, a sexual relationship commenced. About a month after the relationship commenced, at the suggestion of Mr Rez, the Offender ran away from home to live with him and his mother in Bankstown. After about three or four weeks, police, acting on a missing person report made by the Offender’s mother, removed the Offender. However, within days she ran away again and returned to Mr Rez in Sydney.
Apart from a two-week period in 2008, the Offender remained in a relationship with Alois Rez for the rest of his life.
When they were living at Bankstown, the Offender described Alois Rez as very demanding. He started asking her to get everything for him such as things to eat and drink. He treated her like a maid. After about six months, Mr Rez began to physically abuse the Offender. He hit her whenever she “caused” an argument, sometimes inflicting black eyes and other injuries to her face. He described her using derogatory terms.
Incidents of violence by Mr Rez towards the Offender were described by witnesses in evidence. In April 2005, shortly after the Offender turned 16 years, Mr Rez was imprisoned. Whilst in custody, he wrote letters to the Offender requesting her to do things for him. Whilst Mr Rez was in prison, his mother and the Offender lived in a house of friends at Charlestown. The Offender described a period of about three weeks following the release of Mr Rez from custody as being “nice sweet and caring”, but he then returned to “being nasty”.
In October 2005, whilst living with Mr Rez’s sister and her partner in Bolton Point, the Offender realised she was pregnant. Mr Rez told her to have an abortion and that he was too old to have children, but she said she did not want to have an abortion. During the pregnancy, the Offender and Mr Rez lived in numerous premises in the Newcastle and Central Coast areas.
In July 2006, the Offender gave birth to her first child, a daughter. Mr Rez chose the name for the first child (and all of the children) having rejected the Offender’s suggested names.
Records held by the Hunter New England Area Health Service provided a contemporaneous account of health issues affecting the Offender in and after 2006.
In August 2007, she was observed to be “flat in affect” and difficult to engage. The Offender reported that she was exhausted because she had to do all the work and the records noted that the couple were constantly moving and there were always other people in the house. Dr Quadrio considered that the medical notes were suggestive of post-natal depression.
Between the birth of their first child in July 2006 and the middle of 2007, the Offender and Mr Rez stayed at a further seven addresses.
The second child, a boy, was born in March 2008. The Offender became depressed during the second pregnancy and it worsened after the birth of the child. The Offender consulted a general practitioner, Dr Lisa Wall, after the birth of her son. Dr Wall suspected that the Offender had depression and prescribed her antidepressants.
The Offender and Mr Rez lived for a period from June 2007 to June 2009 at a house in Windermere Park. Whilst living at this address, there were numerous incidents where Mr Rez was physically violent towards the Offender. She was slapped in the face and was regularly being pushed into walls and had phones taken out of her hand and smashed. On one occasion, the force caused a hole in the gyprock wall that required patching.
On one occasion in December 2008, the Offender told Mr Rez that she needed to go to the shop to get custard for the baby. Mr Rez became angry, picked up a computer chair and threw it at her. The Offender rang her mother and said that she could not take it anymore and asked her to call the police. Mr Rez was arrested a short time later. When police attended, the Offender told them that she had been subject to violent situations in the past but she had not reported them to police and that Mr Rez had previously told her that, if she contacted police, he would slit her throat before the police arrived. The Offender’s stepfather came to collect the Offender and the children.
They stayed with her mother and stepfather for a few days and police sought and obtained an apprehended violence order on behalf of the Offender that included a condition preventing Mr Rez from living with her.
The Offender returned to the house at Windermere Park after being told of an attempted break-in there. Within a couple of weeks, she had received pleas from Mr Rez to be allowed to move back in. He made promises to her that things would change and that he would get a job. He also said that he could not remain living with his sister and that he had nowhere else to go.
The Offender felt sorry for him and agreed. She attended Toronto Court House in the company of Mr Rez and his mother to have the conditions of the apprehended violence order changed. It was the case, however, that Mr Rez was physically violent towards the Offender even whilst the apprehended violence order was in force.
In June 2009, the Offender, Mr Rez and their two children moved to an address in Charlestown. Further incidents of violence on the part of Mr Rez towards the Offender occurred during this period.
By about 2010, Alois Rez had become associated with the Rebels OMCG, eventually becoming the Sergeant at Arms of the Rebels Morisset Chapter. His mother, Zonia, was in a relationship with Alex Vella, the National President of the Rebels OMCG in Australia. The Offender met Mr Vella on one occasion at Charlestown when she was pregnant with her third child.
By about August 2010, when the family was evicted from the house at Charlestown, Mr Rez rented a shed at an address in Waratah so that he did not have to move his property every time their address changed. The shed was decorated with various items of Rebels OMCG paraphernalia and was sometimes used as a meeting place by Mr Rez and his friends.

An incident of violence by Mr Rez towards the Offender occurred at the shed in Waratah. Mr Rez lunged at the Offender and she fell to the ground. Mr Rez’s mother was present, but made no attempt to intervene. The incident ended when a friend of Mr Rez pulled him off the Offender and told him that “you do not hit women”.
After being evicted from the house at Charlestown, the family stayed for a period in a motel and then at a serviced apartment in Cooks Hill followed by a rental house at Mayfield.
The third child, a boy, was born in January 2011. From the time the third child was born in January 2011 until the death of Mr Rez, the Offender had no further contact with her own family. In early 2011, Mr Rez told her that she had to choose between her family and him and the children. The Offender said that she was scared of Mr Rez because he threatened her and told her that if she ever took the children he would find her and kill her.
Amongst the witnesses called at the trial was Chrie Puime who gave evidence of events in 2011. Ms Puime said that Mr Rez was always onto the Offender to jump up straight away to tend to the baby and to do other things. She said that Mr Rez would swear at the Offender and use derogatory names when speaking to her, including “bitch”, “gronk”, “slag” and “fuckwit”. There was evidence from other witnesses as well of Mr Rez using derogatory terms such as these to describe the Offender. Ms Puime described an incident when Mr Rez threw something at the Offender and hit her in the face, then slapped her in the face and threw all her belongings in the front yard and told her to leave. Ms Puime said that Mr Rez was always belittling the Offender.
By mid-to-late 2011, the Offender described things as being difficult. By then, she was 22 years old and had three children and was pregnant with the fourth. The violence and abuse on the part of Mr Rez towards the Offender continued.
The fourth child, a daughter, was born in December 2011 by caesarean section. The Offender left the hospital after one day against medical advice. Mr Rez did not have a driver’s licence and he told the Offender that he was not coming up to see her and that she had to go home. Within two days, the Offender was driving Mr Rez around at his request and was helping with the children and housework.
In March 2012, the relationship between Mr Rez and the Rebels OMCG soured. Mr Rez lost his Rebels’ colours and received a threatening SMS message suggesting that he leave town. The family packed up and left their residence at Mayfield.
Between March and June 2012, the Offender and Mr Rez stayed at more than 10 different places in the Nelson Bay area.
In May 2012, the Offender, Mr Rez and the children travelled to Dubbo to attend the funeral of Mr Roff’s wife. Mr Roff had been a long-standing friend of the Rez family and Mr Rez knew him well. At the funeral, Mr Rez met up with some of his old Dubbo friends and decided he was going to move back to his home town.
As mentioned earlier, Mr Rez, the Offender and the children moved into a house in Alfred Street, Dubbo. Mr Rez continued to demonstrate violent and controlling behaviour towards the Offender. On one occasion, Mr Rez ripped a phone from the Offender’s hand and goaded her to ring the police saying he would slit her throat and bury her in the backyard by the time the police arrived. Although Mr Rez had not used drugs since the beginning of their relationship, the Offender thought he had started using amphetamines again after the move to Dubbo. Her belief was based on the fact that his anger got much worse as did his behaviour towards her.
On one occasion in Dubbo, Mr Rez punched and smashed the windscreen of the car whilst the Offender was sitting in the driver’s seat with two of the children in the vehicle.
In October 2012, the Offender reported to police that Mr Rez had received threatening phone calls. In reporting the calls, she said falsely that she had been present when the calls were received. In evidence at the trial, she said that whilst she believed Mr Rez had in fact received the calls, she falsely reported her own presence because Mr Rez had asked her to tell them that she was there and had heard what was said. Mr Rez had told her that he did not want to make the report himself and did not want his mother to do so either.
As mentioned earlier, in about May 2013, the Offender saw Facebook messages on Mr Rez’s phone between him and Amanda Vine. By that time, Mr Rez was spending a lot of time in bed. He did not get food or drinks for himself but would text message or call the Offender to get them for him. On occasions when the Offender suggested that he should do these things himself, Mr Rez would get angry and tell her that she was there to serve him and to look after the house and the children.
I have referred earlier to that part of the history when the Offender commenced her relationship with Mr Roff. The evidence pointed to the clear distinction between what the Offender regarded as her loving relationship with Mr Roff and the controlling and abusive relationship she had had since her teenage years with Mr Rez.
There was further evidence at trial concerning the incident on 23 July 2013 referred to earlier (at [48]). The Offender stated that Mr Rez pushed her down the hallway and tried to push her out of the house whilst punching a hole in the wall. She slept on the lounge that night and messaged Mr Roff who called the police. Mr Rez had set up a camera at the front of the house because he was afraid that bikies were after him. As a result, Mr Rez saw the police coming and was prepared for them. He denied that anything had happened and, when the police asked the Offender about the incident, she was afraid to speak because Mr Rez was standing next to her.
On 24 July 2013, the Offender attended Dr Mahmod at the Western Plains Medical Centre, Dubbo. She completed a “K-10” assessment for depression and scored 43 out of 50, suggesting severe depression. The Offender was given a prescription for antidepressant medication that she never filled and she was also referred to a psychiatrist.
The Offender was seven weeks’ pregnant at that time and also reported spotting and cramping to Dr Mahmod. She was sent to the hospital for an ultrasound and a follow-up in subsequent days.
I have set out earlier in these remarks events which occurred after 24 July 2013 leading to the killing of Mr Rez on 29 July 2013. It is not necessary to repeat them here.

The Offender’s Subjective Circumstances

As mentioned earlier, the Offender was 24 years old at the time of the offence and is now 29 years old.
The Offender has no prior convictions.
The Offender has given birth to five children, three boys and two girls, now aged between four and 11 years. The four eldest children are now in the custody of Mr Rez’s mother. The youngest child is in the custody of the Offender’s mother. The Offender has regular visits from her youngest child (in the company of her mother), but she has had no contact with the four older children since her arrest on 9 August 2013.
In addition to the psychiatric evidence from Dr Quadrio and Dr Skinner, reports of Ms Jennifer Carter, psychologist, dated 24 March 2016 and 27 April 2018 were tendered at the sentencing hearing.
In addition, an affidavit of the Offender affirmed 31 January 2018 (prepared for the Court of Criminal Appeal proceedings) was tendered in the defence case on sentence. The Crown did not wish to cross-examine the Offender on the affidavit.
The evidence of Dr Quadrio, Dr Skinner and the reports of Ms Carter, taken with the evidence given at the trial, indicate that the Offender has suffered pervasive dysfunction in her life. The Offender was exposed to serious domestic violence as a child. The Offender had difficulty making and keeping friends at school and then, as a teenager, she mixed in inappropriate social sets.
As mentioned earlier, the Offender became sexually involved with Mr Rez when she was just 15 years old and quickly became immersed in what could be fairly described as his world of antisocial behaviour. The Offender became pregnant not long after meeting Mr Rez and gave birth to four children in the space of less than six years including giving birth to two children in one calendar year.
I accept there was a pattern of mistreatment of the Offender by Mr Rez which went effectively unheeded and unchecked in the home environment. I accept that the Offender became effectively indoctrinated by Mr Rez’s abuse, belittlement and demands and that she came to acquiesce in his demeaning treatment of her and became passive and emotionally switched off.
The Offender’s dependent personality traits effectively resulted in her needing another man to take her out of the relationship with Mr Rez, so that she had someone to make decisions and lead her to what she thought would be a better life for herself and her children. It was the significantly older Mr Roff who filled this role.
The Offender was arrested on 9 August 2013 and charged with the murder of Mr Rez on 10 August 2013. She spent 159 days in custody under arrest or bail refused between 9 August 2013 and 16 January 2014, when she was released on bail.
The Offender was returned to custody following the jury’s verdict on 14 April 2016. It is common ground that her sentence should be backdated to 5 November 2015.
I note that the Offender was subject to conditional bail for over two years and that, during that time, she reported to the police three times a week.

Some Features Bearing on the Objective Gravity of the Offence

The offence of manslaughter is punishable by a maximum penalty of 25 years’ imprisonment. The offence covers a wide variety of circumstances calling for a wide variety of penal consequences: R v Green [1999] NSWCCA 97 at [24]. It has been said that manslaughter, beyond any other crime, is protean (exceedingly variable): R v Hill (1981) 3 A Crim R 397 at 402; R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377 at 27 [133].
It is not the variety of manslaughter but the facts which determine the objective gravity of the offence: R v Dally (2000) 115 A Crim R 582; [2000] NSWCCA 162 at 592-593 [64]. An assessment of the objective criminality of an offence of manslaughter will depend on the factual findings made by the sentencing Judge: R v MD (2005) 156 A Crim 372; [2005] NSWCCA 342 at 386 [62].
Bearing in mind that the offence was committed under the effects of a substantial impairment of mind reducing the Offender’s liability from murder to manslaughter, the following features also bear upon the objective gravity of the offence:

the offence was a planned joint criminal enterprise carried out with an intention to kill - the planning was not sophisticated;

the motivation for the plan to kill was that the victim stood in the way of the Offender’s desire to be with Mr Roff and her children;

the planning extended over about four or five days;

the Offender was the instigator of the plan in that she suggested that Mr Rez had to “go” as being the only way that she and Mr Roff could be together;

the Offender had important roles to play - administering the pills which would stupefy Mr Rez, ensuring that the coast was clear and setting up the house for Mr Roff’s arrival for the actual killing, then assisting in the removal of the body and cleaning up in the aftermath of the killing and then maintaining the agreed cover story thereafter;

the killing involved the administration of stupefying drugs to render the victim helpless;

the homicidal attack was carried out upon Mr Rez in his own home by persons whom he trusted, with it being almost certain that he was dead before his body was transported away from the property;

the killing occurred whilst the children were sleeping in the same house although they were not present in the room when it occurred.

These features serve to magnify the objective gravity of the Offender’s crime of manslaughter.
In homicide cases where the body of the victim has been secreted and not located, it has been said that the act of a murderer in concealing the body may constitute an aggravating factor of the offence itself: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61]. This aspect could operate as an aggravating factor in sentencing Mr Roff.
Although the Offender knew that Mr Roff was to dispose of the body of Mr Rez, it was accepted by the Crown that she does not know where the body is located. She assisted the police in an attempt to find out the location of the body from Mr Roff, without success. I accept the joint submission of the parties that the concealment by Mr Roff of the body of Mr Rez at an unknown location should not be taken into account as an aggravating factor on sentencing the Offender.

The Role of the Finding of Substantial Impairment by the Jury

Competing submissions were made at the sentencing hearing concerning the approach that the Court should take on sentence to the fact that the psychiatric evidence had already been taken into account in favour of the Offender by her acquittal of murder and conviction for manslaughter.
Senior Counsel for the Offender submitted that the degree of impairment was not a matter for the sentencing court to consider further with reliance being placed upon Tarrant v R at [79]-[80] in this respect. It was submitted that the decision of the Court of Criminal Appeal in Catley v R [2014] NSWCCA 249 did not bear upon the sentencing exercise in this case.
The Crown submitted that it was appropriate for the Court to consider the degree of impairment in making an overall assessment of the gravity of the manslaughter offence. In this respect, the Crown relied upon Catley v R and the decision of RA Hulme J in R v Fiona Barbieri [2014] NSWSC 1808.
The Crown submitted that the Offender’s mental conditions were causally connected to her offending, and reduced her moral culpability and the objective gravity of her offending but that, to a large extent, this has already been taken into account in the reduction of her liability from murder to manslaughter. In considering all of the evidence at trial, the Crown submitted that the Court would find that the Offender’s impairment was not at the higher end of the scale. Despite the impairment, the Crown submitted that her offence involved planning and organisation over a few days and involved the use of a false cover story to explain the disappearance of Mr Rez and the maintenance of a lie in the face of police questioning.
The Crown submitted that these factors were not inconsistent with the existence of a substantial impairment of mind, but they demonstrated a capacity for rational and practical organisation of a plan to kill.
It was submitted that, having already taken these matters into account in returning a verdict of manslaughter, the Offender’s impairment does not significantly reduce her moral culpability for the offence of manslaughter or significantly moderate the weight to be given to retribution, denunciation and deterrence.
The Crown submitted that caution must be exercised in the way in which the Offender’s mental conditions are taken into account in the sentencing exercise to ensure that double counting in her favour does not occur, given the fact that these matters have already been taken into account in the jury’s verdict to reduce her crime from murder to manslaughter.
I have referred earlier (at [90]) to the elements of the partial defence of substantial impairment by abnormality of mind under s.23A Crimes Act 1900, and to the matters which are implicit in the jury verdict in this case.
The decision of the Court of Criminal Appeal in Tarrant v R provides particular assistance to the sentencing exercise in this case. The Court of Criminal Appeal said at [74]:

“There is no doubt that a central feature of the sentencing exercise was for the judge to determine the culpability of the offender and place it within the broad spectrum covered by the offence of manslaughter. In undertaking that exercise, he was required to act consistently with the jury’s verdict. The verdict of manslaughter reflected a view formed by the jury with respect to the operation of s 23A of the Crimes Act.”

The Court observed at [75] that this “was no easy task” in this case.
The Court of Criminal Appeal observed in Tarrant v R at [80] that the very imprecision which must attach to the community values inherent in the judgment made by the jury is inimical to any exercise in further gradations of the degree of impairment.
That said, it is appropriate to refer to all the features of the offence to assist a conclusion concerning the overlapping features of objective criminality and moral culpability for this offence of manslaughter. The sentencing Court takes as a starting point the jury verdict and considers all the evidence for the purpose of the necessary assessment concerning the culpability of the Offender and to place it within the broad spectrum covered by the offence of manslaughter.
This approach reflects the task undertaken by Courts in cases such as R v Keceski (Court of Criminal Appeal, 10 August 1993), R v Blacklidge (Court of Criminal Appeal, 12 December 2015); R v Cooper (Court of Criminal Appeal, 24 February 1998); Catley v R at [42]-[47]; R v Fiona Barbieri at [87]-[88]; R v Jenbare [2016] NSWSC 1317 at [43]-[45] and Ukropina v R [2016] NSWCCA 277 at [35]-[39].
Of course, the Court does not disregard the evidence of the substantial impairment when sentencing for manslaughter. However, one does not approach the issue on sentence as if it had not already played a major role in reducing the Offender’s liability from murder to manslaughter.
To the extent that a decision on sentence requires the Court to take into account principles with respect to the mental condition of the Offender, applying the well-known principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at 43 [177], it is necessary to bear in mind that aspects of this evidence have already been taken into account by the jury in returning a verdict favourable to the Offender.
That said, the medical evidence concerning the Offender’s mental condition remains relevant to the sentencing exercise and is to be taken into account.
This is not a case of a marriage going bad where one partner cold bloodedly takes part in the killing of a partner to allow the way to be cleared for her to have a new life with her co-offender.
Here, the Offender had only known a violent and controlling relationship with Mr Rez since she was 15 years old. She did not have an opportunity to develop through her teenage years into young adulthood in a caring and supportive setting.
Rather than her living in a loving relationship with her partner, she was dominated and repressed by Mr Rez whilst having four children with him. She suffered chronic depression and post-traumatic stress disorder in the context of an abusive relationship involving all the features of “intimate partner violence”.
At the age of 24 years, the Offender saw the older Mr Roff as the way forward in a happy relationship which was, in a sense (and as she saw it), the only way out of the oppressive relationship she had experienced since her teenage years.
There are factors which serve to magnify the objective gravity of the offence, but the Offender’s moral culpability is reduced significantly by the constellation of factors which operate in this case.
In seeking to place this offence in the broad spectrum covered by the offence of manslaughter, this must be seen as a serious offence of manslaughter.

The Offender’s Plea of Guilty and Assistance to the Authorities

The Offender offered to plead guilty to manslaughter at an early point in the proceedings brought against her. Her offer was rejected by the Crown at committal proceedings and at trial, with the jury returning a verdict of manslaughter at the end of the trial.

The principles concerning an appropriate discount to be allowed in these circumstances are summarised in Villalon v R [2015] NSWCCA 229 and Merrick v R [2017] NSWCCA 264. Although the Offender’s written offer to plead guilty to manslaughter in the Local Court was not accompanied by any particulars of the proposed criminal culpability as required in Merrick v R at [116]-[117], it was apparent to the Crown that the offer to plead guilty to manslaughter was based upon the Offender’s mental state.
The Crown accepts that evidence with respect to the Offender’s mental state (including evidence concerning “intimate partner violence”) was being obtained at that time. The Crown accepts, as well, that the Offender was not in a position to make a formal offer to plead guilty until an expert had been retained.
It was the joint submission of the parties that the Offender’s offer to plead guilty to manslaughter on the basis enunciated when the matter was listed for arraignment in the Supreme Court should attract the maximum utilitarian discount of 25%.
I am satisfied that the Offender’s offer to plead guilty to manslaughter in the circumstances of this case, should give rise to a discount of 25% to reflect the utilitarian value of the offer to plead.
The Offender offered to give evidence against Mr Roff and did so at his trial. Although a substantial circumstantial case existed against Mr Roff, the Offender’s evidence put the facts and circumstances in their correct context, particularly with respect to the communications between the two offenders on the night of 28-29 July 2013. To the extent that Mr Roff put an alternative innocent explanation for these communications, the direct evidence of the Offender served to fortify, in significant respects, the Crown case against Mr Roff.
By Reference to s.23(2)(b), (c), (d) and (i) Crimes (Sentencing Procedure) Act 1999, I am satisfied that the Offender’s evidence was useful to the Crown and was important to the Crown case at the trial of Mr Roff, that the Offender’s evidence contained admissions of her own involvement in a serious offence thereby enhancing its truthfulness and reliability, that the nature and extent of her assistance involved the giving of evidence at the trial of her co-offender, and that the assistance concerned the offence for which she is to be sentenced.
Further, I note that the Offender has gained no benefits and that she has or will suffer harsher custodial conditions because of her assistance.
Applying the principles in R v SZ (2007) 168 A Crim R 249; [2007] NSWCCA 19 at 251 [5], it was submitted for both the Crown and the Offender that a combined discount of 35% for the Offender’s plea of guilty and assistance is appropriate in this case.
It is pertinent to observe as well that, in advance of her giving evidence against Mr Roff, the Offender assisted investigating police by writing to Mr Roff asking him where he had placed the body of Mr Rez. Although Mr Roff replied to the letter, he did not reveal the location of the body and the Offender does not know herself where the body of Mr Rez is located. I am satisfied that the Offender took the only action open to her in an effort to locate the whereabouts of the body of Mr Rez.
Further, I note that the trial of the Offender was run efficiently on a single issue concerning the partial defence of substantial impairment in relation to which the Offender was successful, so that the Offender facilitated the course of justice at her trial: s.22A Crimes (Sentencing Procedure) Act 1999.
I am satisfied that a combined discount of 35% for the Offender’s plea of guilty and her assistance to authorities is appropriate in this case.

Contrition, Remorse, Prospects of Rehabilitation and Protection of the Community

The Offender gave evidence of her remorse in her own trial as well as the trial of Mr Roff.
I am satisfied that she understands the enormity of what she has done. She has taken steps by engaging in therapy and taking medication and by seeking to rebuild her relationships with her mother and wider family and by assisting the authorities to address the issues that gave rise to her offending behaviour.
I am satisfied that after an initial period of deception of investigating police, the Offender has come to recognise, and to greatly regret, the enormity of her crime which has involved the taking of another human life. I am satisfied that she has demonstrated remorse and contrition for her offence: s.21A(3)(i) Crimes (Sentencing Procedure) Act 1999.
As the Crown acknowledged, the Offender has been treated by a psychologist since committing the offence, both in custody and whilst in the community on bail. She appears to have benefited from this counselling and treatment including the taking of medication for depression and anxiety. She has no prior criminal history and has committed no further offences whilst on bail awaiting trial.
It was submitted that, given the unlikelihood of a recurrence of the circumstances which led to the offending and the Offender’s generally positive response to therapy and medication, the Offender would seem to have limited risk of reoffending if she continues to engage with mental health practitioners upon her release so that protection of the community in her particular case ought be given less weight.
I accept this submission for the purpose of sentence.
I am satisfied that the Offender has good prospects of rehabilitation: s.23A(3)(h) Crimes (Sentencing Procedure) Act 1999.

Specific and General Deterrence and the Need for Denunciation

It was acknowledged that the circumstances of the offending in this case are unlikely to be repeated and that the offending arose out of a long-standing abusive relationship. Those factors, coupled with the treatment the Offender has received and will receive, led to a submission by both parties that specific deterrence is not a significant factor in this case.
In all the circumstances of the case, I am satisfied that specific deterrence is not a significant factor on sentence with respect to the Offender.
It was submitted by the Crown that the sentencing of the Offender, notwithstanding her impairment, calls for appropriate weight to be given to deterrence of others with respect to the unlawful killing of another. It was submitted that such conduct should be denounced by the Court and requires retribution consistent with the circumstances of the offending behaviour.
This case involved the intentional killing by Mr Roff, in conjunction with the Offender, of the Offender’s partner, Mr Rez. I accept that there was a significant history of violence and abuse directed to the Offender by Mr Rez. However, the criminal law cannot lightly accept that the response to a situation of gross domestic violence is for the abused partner to be involved in the killing of the abuser. That position is heightened in this case because the offence was not a sudden response in the heat of the moment to yet another act of aggression on the part of Mr Rez directed to the Offender. Rather, the Offender had formed a relationship with Mr Roff and, between the two of them, it was decided that Mr Rez should go. The Offender’s role in the offence included her drugging the victim so that he was less able to defend himself when the time came for Mr Roff to launch a homicidal attack against him.
The law should not tolerate, to any extent, a person taking the law into their own hands to rid themselves of a tormentor.
There is a significant role for general deterrence and denunciation in circumstances such as this: s.3A(b) and (f) Crimes (Sentencing Procedure) Act 1999.
It is necessary to keep in mind the Offender’s mental state in determining the extent to which general deterrence should apply in this case. Although some modification is appropriate in that respect, there is, in my view, a significant role for general deterrence to play on sentence.

Delay

Senior Counsel for the Offender submitted that the delay which has occurred whilst these proceedings have been before the Courts is a factor which should operate in the Offender’s favour on sentence, applying the principles in R v Todd (1982) 2 NSWLR 517 at 519-520.
It was submitted that more than two years had passed since the jury’s verdict and that, in that time, the Offender has been in a state of suspense as to the sentence that would be imposed on her, with this being further complicated by the lodgement of the appeal which was successful and the relisting of the matter for sentencing.
The Crown submitted that the Offender ought to have been aware, since her conviction for manslaughter, that a significant sentence of full-time custody was necessary in this case.
I will take into account the unusual history of these proceedings which has added some measure of uncertainty in the mind of the Offender as to outcome, at least as to the length of sentence to be imposed.

Other Sentencing Decisions for the Offence of Manslaughter

Both the Crown and Senior Counsel for the Offender noted the protean character of the offence of manslaughter: R v Forbes at 27 [133].
It was submitted for the Offender that, with this general caveat, some assistance may be obtained from consideration of sentences imposed for manslaughter offences involving what were described as similar fact situations.
The Crown pointed to a number of cases which might be of general assistance whilst noting the limitations of examination of other sentencing cases.
I have considered the sentencing decisions referred to by the parties. Although some involve manslaughter of an abusive partner, the factual circumstances are dissimilar to the present case. In particular, there is no case which appears to involve a planned killing by an abused partner (such as the Offender) of the abusing partner with the proposed new partner being a co-offender. I do not think the cases referred to provide a range of sentences. They are examples of manslaughter of an abusive partner in a variety of circumstances.
The principal use of other sentencing decisions involves the relevance of “intimate partner violence” on sentence.
Although the first reference to “battered woman syndrome” in Australia occurred in the South Australian decision in R v Runjanjic; R v Kontinnen (1991) 56 SASR 114, the general concept had been considered in earlier cases in New South Wales. Such a case was the 1981 decision of the Court of Criminal appeal in R v Hill where a verdict of manslaughter (by provocation) was substituted on appeal from a conviction for murder. Ms Hill had shot dead her de facto husband who had displayed a pattern of violent, abusive and controlling behaviour towards his partner over many years, usually when intoxicated. In considering sentence for manslaughter, Street CJ (Nagle CJ at CL and Lee J agreeing) said at 402:

“It has been said that manslaughter, perhaps, beyond any other crime is protean. The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act, 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party.
In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life.”

These factors apply as well to the present case. The developed understanding of “intimate partner violence” is to be taken into account as well on sentence: R v TP at [6]-[7]; Director of Public Prosecutions (Vic) v Williams [2014] VSC 304 at [20]-[26].

Special Circumstances

It was submitted for the Offender that a finding of special circumstances could be made in this case upon the basis of her being a mother of five children with whom contact will need to be established or re-established upon her release from custody, together with her need for long-term treatment in order to address her persistent depression and anxiety and her dependent personality traits.
It was submitted that a longer period of time on parole would enable her to remain under the supervision of authorities whilst she continues with treatment in the community.
There is force in these submissions. The Offender will face challenges upon her release from custody and will require an extended period of post-release supervision, which will operate as well in the interests of the community. I will make a finding of special circumstances in this case.

Victim Impact Statements of Behalf of Members of the Rez Family

Victim impact statements were furnished to the Court on behalf of Ms Zonia Rez, the mother of the victim, Mr Arthur Smart, the brother of the victim, and Ms Anna Smart, the sister of the victim. Ms Anna Smart read her victim impact statement to the Court.
The Court acknowledges the sadness and grief on the part of the Rez family at the loss of Alois Rez as a result of the crimes of the Offender and Mr Roff. That grief is no doubt compounded by the fact that the body of Alois Rez has never been located. The fact that it has been necessary for the Court to recount negative aspects of Mr Rez and his conduct towards the Offender should not serve to reduce the genuine grief which the members of his family experience because of his loss.
It is appropriate that I once again express condolences to members of the Rez family for their loss which is reflected in the detailed victim impact statements made by members of his family.

Determining an Appropriate Sentence

It is appropriate to draw together all the objective circumstances of the offence, and the subjective circumstances of the Offender, and apply principles relevant to the imposition of sentence for this offence.
This was a serious offence of manslaughter. The Offender intended that Mr Rez be killed by Mr Roff and this is what happened. The offence was not committed in the heat of the moment as a sudden response to yet another act of violence by Mr Rez towards her. Rather, she and Mr Roff devised a plan which would see her taking active steps to render Mr Rez more vulnerable to attack by drugging him. That is what she did before Mr Roff entered the house and killed Mr Rez before taking him away to a still unknown location where his body was left.
I have kept in mind that the Offender was involved in the killing of Mr Rez for what she perceived as being a benefit for her and her children in being able to live in a new relationship with Mr Roff. In some circumstances, that scenario could be considered as a cold-blooded motive to dispose of a partner to clear the way for a new life with a preferred new partner.
Such a characterisation however would oversimplify and distort the reality of the Offender’s case. There was a powerful body of both factual and psychiatric opinion evidence adduced at the trial, and repeated on sentence, which demonstrated a sustained history of “intimate partner violence” directed to her by Mr Rez from the time that she was a teenager. Having entered a relationship with him at an age when she had neither the judgment nor experience to make a sensible decision, she was almost immediately pregnant and in the next six years had four children to Mr Rez.
I accept that there was a sustained history of violence and controlling conduct on the part of Mr Rez directed to the Offender. In the context of sentencing domestic violence offenders, the Courts have recognised that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children) and that it contributes to the subordination of women with domestic violence typically involving the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship so that the domestic violence offender may no longer need to resort to violence in order to instil fear and control: R v Hamid (2006) 164 A Crim 179; [2006] NSWCCA 302 at 193 [77].
These observations have application in this case in considering the pattern of violent conduct to which the Offender was subjected by Mr Rez. The Offender’s desire to free herself of Mr Rez involved a probably unrealistic hope that she could create a new life for herself and her children with Mr Roff, who was nearly 30 years older than her.
The moral culpability of the Offender for the crime of manslaughter must be considered against this background and is reduced as explained earlier in these sentencing remarks.
The Offender has no prior or subsequent criminal history. Her offence is of a very grave kind, but is to be understood in the unusual and extreme circumstances which then existed in her life. I am satisfied that she has good prospects of rehabilitation and is unlikely to offend again in the future.
Before application of the 35% discount for her plea of guilty and assistance to authorities, I am satisfied that a head sentence of imprisonment for 12 years and six months is appropriate in this case. After application of the 35% discount and with some rounding, the head sentence should be one of eight years.
I am satisfied that a proper basis exists for a finding of special circumstances given the Offender’s need for long-term assistance in the community and the challenges she will face in re-establishing contact with her young children. A non-parole period of five years is appropriate in this case. This is the minimum period which the Offender should serve in custody having regard to all factors relevant to the imposition of sentence: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at 717 [57].
The sentence will commence on 5 November 2015 to give effect to past periods in custody.
It is necessary for the Court to inform the Offender that, for the purposes of s.25C(1) Crimes (High Risk Offenders) Act 2006, the provisions of that Act apply to her and to the offending which is the subject of these proceedings.
Would the Offender please stand.
Sarah Renae Tarrant, for the manslaughter of Alois Rez at Dubbo on 29 July 2013, you are sentenced to imprisonment for a period of eight years comprising a non-parole period of five years commencing on 5 November 2015 and expiring on 4 November 2020 with a balance of term of three years commencing on 5 November 2020 and expiring on 4 November 2023.
The earliest date upon which you will be eligible for release on parole is 5 November 2020.

**********

Decision last updated: 29 May 2018

Medium Neutral Citation:	R v Tarrant [2018] NSWSC 774
Hearing dates:	4 May 2018
Date of orders:	29 May 2018
Decision date:	29 May 2018
Jurisdiction:	Common Law
Before:	Johnson J
Decision:	For the manslaughter of Alois Rez at Dubbo on 29 July 2013, the Offender is sentenced to imprisonment for a period of eight years comprising a non-parole period of five years commencing on 5 November 2015 and expiring on 4 November 2020 with a balance of term of three years commencing on 5 November 2020 and expiring on 4 November 2023. The earliest date upon which the Offender will be eligible for release on parole is 5 November 2020.
Catchwords:	CRIMINAL LAW – sentence – manslaughter – partial defence of substantial impairment by abnormality of mind– chronic depression, post-traumatic stress disorder and dependent personality disorder - substantial history of intimate partner violence – killing of abusive and controlling partner – level of planning in killing carried out by intended new partner of Offender with her assistance – no prior criminal history - early plea of guilty – assistance to authorities – remorseful – good prospects of rehabilitation
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	Catley v R [2014] NSWCCA 249 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Director of Public Prosecutions (Vic) v Williams [2014] VSC 304 Liyanage v Western Australia (2017) 51 WAR 359; [2017] WASCA 112 Merrick v R [2017] NSWCCA 264 Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 Potts v R (2012) 227 A Crim R 271; [2012] NSWCCA 229 R v Blacklidge (Court of Criminal Appeal, 12 December 2015) R v Cooper (Court of Criminal Appeal, 24 February 1998) R v Dally (2000) 115 A Crim R 582; [2000] NSWCCA 162 R v Fiona Barbieri [2014] NSWSC 1808 R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377 R v Green [1999] NSWCCA 97 R v Hamid (2006) 164 A Crim 179; [2006] NSWCCA 302 R v Hill (1981) 3 A Crim R 397 R v Jenbare [2016] NSWSC 1317 R v Keceski (Court of Criminal Appeal, 10 August 1993) R v MD (2005) 156 A Crim 372; [2005] NSWCCA 342 R v Peters [2002] NSWSC 1234 R v Roff [2015] NSWSC 1853 R v Runjanjic; R v Kontinnen (1991) 56 SASR 114 R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 R v SZ (2007) 168 A Crim R 249; [2007] NSWCCA 19 R v Tarrant [2016] NSWSC 892 R v Todd (1982) 2 NSWLR 517 R v TP [2018] NSWSC 369 R v Wilkinson (No. 5) [2009] NSWSC 432 Roff v R [2017] NSWCCA 208 Tarrant v R [2018] NSWCCA 21 Ukropina v R [2016] NSWCCA 277 Villalon v R [2015] NSWCCA 229
Texts Cited:	---
Category:	Sentence
Parties:	Regina (Crown) Sarah Renae Tarrant (Offender)
Representation:	Counsel: Mr PJ McGrath SC; Ms G Turner (Crown) Ms JS Manuell SC; Mr IH Nash (Offender) Solicitors: Director of Public Prosecutions (Crown) Legal Aid NSW (Offender)
File Number(s):	2013/342004
Publication restriction:	---