R v Vulovic (No. 4)
[2012] NSWSC 212
•15 March 2012
Supreme Court
New South Wales
Medium Neutral Citation: R v Vulovic (No. 4) [2012] NSWSC 212 Hearing dates: 17 February 2012 Decision date: 15 March 2012 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: The Offender is sentenced to imprisonment by way of a non-parole period of six years commencing on 12 November 2009 and expiring on 11 November 2015 with a balance of term of three years commencing on 12 November 2015 and expiring on 11 November 2018.
Catchwords: CRIMINAL LAW - trial for murder - convicted of manslaughter - provocation - heated argument between acquaintances - provocative words and conduct directed at Offender - deceased stabbed - assessment of objective gravity - significant level of provocation - substantial degree of violence by Offender - determination of appropriate sentence Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999Cases Cited: Cheung v The Queen [2001] HCA 67; 209 CLR 1
R v Forbes [2005] NSWCCA 377; 160 A Crim R 1
The Queen v Olbrich [1999] HCA 54; 199 CLR 270
R v Hemsley [2004] NSWCCA 228
Ali v R [2010] NSWCCA 35
R v Alexander (1994) 78 A Crim R 141
R v Blacklidge (NSW Court of Criminal Appeal, 12 December 1995)
R v Stewart [2008] NSWSC 563
R v Walsh [2004] NSWSC 111
R v Bullock [2005] NSWSC 1071
R v Forrest [2008] NSWSC 301
R v Bolt [2001] NSWCCA 487; 126 A Crim R 284
R v Morabito (1992) 62 A Crim R 82
R v Green [1999] NSWCCA 97Texts Cited: --- Category: Sentence Parties: Regina (Crown)
Milija Vulovic (Offender)Representation: Mr T R Bailey (Crown)
Mr GA Brady; Mr H Chiu (Offender)
Director of Public Prosecutions (Crown)
Nyman Gibson Stewart (Offender)
File Number(s): 2009/250160 Publication restriction: ---
REMARKS ON SENTENCE
JOHNSON J : On 22 November 2011, the trial of the Offender, Milija Vulovic, commenced before a jury on an indictment alleging that on 12 November 2009 at Canley Heights, he did murder Tony Darkovski. On 8 December 2011, the Offender was acquitted of murder, but convicted of manslaughter.
A sentencing hearing proceeded before me on 17 February 2012.
It falls to me as the trial Judge to determine punishment and, for that purpose, to make findings of fact relevant to sentencing. The primary constraint is that the view of the facts adopted by me for purposes of sentencing must be consistent with the verdict of the jury. Any findings of fact against the Offender must be arrived at beyond reasonable doubt: Cheung v The Queen [2001] HCA 67; 209 CLR 1 at 12-13 [14]. Any findings of fact which operate to mitigate penalty may be made on the balance of probabilities, the onus of proof lying in this respect on the Offender: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 281 [27].
In this case, it is common ground that the jury acquitted the Offender of murder and convicted him of manslaughter by way of provocation, the only basis for a manslaughter verdict left to the jury.
Facts of the Offence
In November 2009, Ilija Plavsic (then 62 years of age) lived in a single-storey residential dwelling at Canley Heights. The Offender (then aged 53 years) resided with Mr Plavsic at the premises. Mr Plavsic had known the Offender for more than 15 years through his work as a cement renderer, but the Offender had only recently commenced to reside with Mr Plavsic.
In November 2009, Tony Darkovski ("the deceased") (then aged 32 years) worked for Mr Plavsic as a cement renderer when required.
On the morning of Thursday, 12 November 2009, the deceased went to the Canley Heights premises to meet Mr Plavsic for the purpose of travelling to work together.
Shortly before 7.00 am that day, the Offender telephoned his girlfriend, Olga Savic, and spoke to her for some time. According to Ms Savic, the Offender seemed happy during this conversation. The Offender left the Canley Heights premises and visited Siki's Café (about 300 metres away) where he remained for several hours. Whilst away from the Canley Heights premises, the Offender purchased some beer from a bottle shop.
Mr Plavsic and the deceased finished work and returned to the Canley Heights premises during the afternoon. At that time, the Offender was not at the premises. The deceased asked Mr Plavsic for money so the latter telephoned Dragan Paravinja, a renderer whom he knew, who indicated he would be in a position to lend Mr Plavsic a sum not exceeding $200.00 after 5.00 pm that day.
The deceased left the Canley Heights premises and purchased a five-litre cask of wine which he brought back to the premises. He commenced to drink the wine with Mr Plavsic. The evidence indicates that both the deceased and Mr Plavsic were regular and enthusiastic drinkers of alcohol, as indeed was the Offender.
During the course of the afternoon, the Offender returned to the Canley Heights premises carrying some of the beer which he had purchased.
What followed during the course of the afternoon was the subject of contested evidence at the trial. The Crown called Mr Plavsic, who conceded readily that he was affected by alcohol at the time of relevant events that afternoon. The Offender gave evidence at trial, and had provided an account to police in an ERISP conducted on the evening of 12 November 2009.
Put shortly, Mr Plavsic said that the three men were seated in the dining area of the premises drinking alcohol together. After a time, he went into his bedroom to rest, leaving the Offender and the deceased at the table. After a time, Mr Plavsic heard raised voices. He emerged from his bedroom to find the Offender and the deceased arguing. Mr Plavsic described a physical altercation between the two men which included, at one point, the deceased grabbing the Offender by the neck in a strangling motion and, at a different point of time, the Offender entering his bedroom and returning with an item, described at the trial as nunchakus, which the Offender used in an attempt to strike the deceased.
The primary issue at the trial agitated for the Offender, was the question whether the jury could be satisfied beyond reasonable doubt that it was the Offender who stabbed the deceased. The defence case was that it must have been Mr Plavsic, and not the Offender, who had inflicted the fatal wounds. By its verdict, the jury was satisfied beyond reasonable doubt that the Offender fatally stabbed the deceased. This conclusion involved an acceptance of the key features of Mr Plavsic's evidence that it was the Offender who stabbed the deceased.
The verdict of manslaughter involved an acceptance by the jury that the Crown was not able to negative provocation. Put shortly, this partial defence to murder is available where the act of the Offender is the result of a loss of self-control induced by the deceased's conduct, where that conduct could have induced an ordinary person in the position of the Offender to have so far lost self-control as to have formed an intent to kill or inflict grievous bodily harm.
On the application of defence counsel, not opposed by the Crown, I left provocation to the jury upon the basis of material contained in the Offender's ERISP of 12 November 2009 and his evidence given at trial. In summing up, I summarised the material which raised provocation for consideration by the jury in the following way (paragraph 116, pages 32-33):
"... I will explain to you what it is that raises provocation in this case as an issue for your consideration. In effect, it emerges entirely from the evidence of the accused or his interview with the police given on 12 November 2009. The matters which are pointed to in the evidence are evidence of the accused asserting that Mr Darkovski grabbed him by the neck, knocking him to the ground, evidence that the deceased was said to be out of control, evidence that the deceased was said to have started a fight against the accused, evidence of the insult which the deceased is said to have made about Olga. You will perhaps remember that, that is part of the accused's evidence. The suggestion from the accused that Mr Plavsic had made a crude joke about the use of the nunchukas, the evidence of the accused that there were demands for money from him by Mr Darkovski and Mr Plavsic and that he felt this was intolerable, and his suggestion that Mr Darkovski had been 'like a terror' for him in the past asking him for money both at home and in the street."
I do not accept the submission of Mr Brady, counsel for the Offender, that there are difficulties in explaining the jury's verdict. The jury was directed, in the usual way, that it was open to the jury to accept some, all or none of the evidence of a witness. In circumstances where Mr Plavsic was clearly affected by alcohol, as he readily conceded, it was open to the jury to accept aspects of his evidence and in particular, the memorable and dramatic fact that it was the Offender who stabbed the deceased, whilst being less confident concerning secondary aspects of his account.
The bloodstains to the clothing of the Offender served to support the Crown case that it was he who stabbed the deceased. I accept that the jury's verdict was based upon an acceptance of the core evidence of Mr Plavsic that it was the Offender who stabbed the deceased.
Consistent with the verdict of the jury, I am satisfied that at least some of the provocative conduct identified in the extract from the summing up (at [16] above) took place. I am satisfied that much of it occurred in the period when the Offender and the deceased were alone, and Mr Plavsic was in his room.
The fact that Mr Plavsic did not agree that the provocative events had occurred in his presence may be explained largely in this way. By the time Mr Plavsic emerged from his room, there was a substantial and heated argument under way between the Offender and the deceased. Mr Plavsic observed events, including physical interaction between the two men. He was affected by alcohol so that, as I have said, his recall of secondary details of the argument was not clear.
The broken window, upturned ironing board and broken table in the living room area, which was heavily bloodstained at different points, supported the Crown case that there was a violent struggle between the two men with the knife being used during the course of it.
I am satisfied, as in my view was the jury, that the Offender obtained a knife from the kitchen, after significant acts of provocation had occurred, and that he then used that knife to stab the deceased on some five occasions. The medical evidence of Dr Van Vuuren at trial described five stab wounds to the deceased. Two stab wounds were to the side of the chest. One was to the left upper arm. A further stab wound was in the area of the left lower abdomen and the fifth was to the left side of the neck of the deceased.
The medical evidence was that the deceased died from blood loss.
Dr Van Vuuren described a cut to the hand of the deceased which could have been a defensive injury.
An examination of the blood of the deceased, revealed a blood alcohol level of 0.259 grams of alcohol per 100 millilitres of blood.
After being stabbed by the Offender, the deceased walked out the rear doorway of the premises and moved to the side of the house and onto the footpath, before staggering and collapsing in the front yard of the next-door house. He died at the scene.
Soon after the deceased was stabbed and had left the house, the Offender asked Mr Plavsic (soon after 4.20 pm) to ring Ms Savic. Mr Plavsic told Ms Savic that the Offender wished to speak to her. The Offender said to Ms Savic "The Macedonian [the deceased] has attacked me. There's blood everywhere. Come down. Call Borsa [the Offender's sister] ".
Some 52 seconds after the call to Ms Savic, Mr Plavsic made a "000" call, in the course of which he said that the Offender had stabbed the deceased (Exhibit P).
It was submitted for the Offender that the jury's verdict involved a finding that the Offender had acted with intent to cause grievous bodily harm, and not intent to kill. The Crown did not advance a contrary submission on sentence. On all the evidence, I am satisfied that the Offender should be sentenced upon the basis that he intended to cause grievous bodily harm to the deceased.
In my view, the jury had particular regard to aspects of the Offender's ERISP made on the evening of 12 November 2009, in which he said that he had been provoked by the deceased, who had used abusive and intemperate language towards him and had been aggressive towards him.
It is noteworthy that the Offender gave a detailed account of events in that interview up to a certain point, but then said he had lost consciousness and could not say what happened.
In his interview with police on the evening of the incident, the Offender said that the deceased was "provoking" him (Exhibit M, Q/A78). Later in the interview, he told police that the deceased and Mr Plavsic "started to provoke me" (Q/A194). Again, the Offender said the deceased "started provoking me" (Q/A206). In the next answer, he said "they continued provoking me" and "they provoked me non-stop" (Q/A207). Shortly after, the Offender was asked if he felt angry at the time, to which he replied "how would you feel if someone, you lose your job and someone provokes you" (Q/A210). The Offender repeated that he had been "provoked" that afternoon (Q/A221, 228, 236, 239, 378).
It is clear from the interview that the Offender was well aware, soon after the fatal attack, that he had been abused and manhandled in a way that made him angry and, in his words, "provoked" him. The jury's verdict is entirely understandable. The fact that the Offender used this word repeatedly at that time would not have been lost on the jury given that, by the time the jury watched the interview again in the jury room during their deliberations, the concept of provocation had been explained in the summing up.
In his ERISP of 12 November 2009 and his evidence before the jury, the Offender gave an account of events and the altercation with the deceased up to a point where he said he was partly strangled and then lost consciousness. Despite the Offender's detailed account of what happened up to that point, including his anger and being provoked, he said he could not recall what happened after that point. Thus, the Offender did not assert that he saw Mr Plavsic stab the deceased, nor did he deny directly that he had done so. Rather, he said that he could not recall what happened beyond a certain point, and that he considered that it was impossible that he had stabbed the deceased.
The forensic evidence did not assist the Offender, nor would his position in the trial that he could not recall what happened after he was partly strangled by the deceased. The jury was left with a defence scenario that it was Mr Plavsic who stabbed the deceased, accompanied by non-recollection by the Offender as to what had happened, but a claim that he would not have done such a thing.
Although I accept that the Offender was grabbed by the throat by the deceased during the melee, I do not accept that the Offender lost consciousness.
The Crown submitted at trial that the Offender had engaged in a type of charade in advancing this account and that he well knew that he had stabbed the deceased. The Crown submitted, in any event, that even if he had forgotten what he had done, that he was guilty of the crime charged because he had stabbed the deceased with the requisite intention.
I am satisfied that the Offender knew and was aware of, a good deal more as to what happened in the premises on the afternoon of 12 November 2009 than he disclosed to police in the ERISP and in his evidence to the jury at the trial.
The Offender's Mental State at the Time of the Offence
Mr Brady tendered, at the sentencing hearing, reports of Dr Olav Nielssen, psychiatrist, dated 1 June 2010 (Sentence Exhibit 1) and 16 February 2012 (Sentence Exhibit 2). Upon the basis of these reports, coupled with some limited evidence given at the trial and a number of documents perused by Dr Nielssen, it was submitted that the Offender suffered from certain disorders as at 12 November 2009 in the form of panic disorder, benzodiazepine dependent syndrome and depressive illness. It was submitted that there was a real causal connection between one or more of those disorders and his offending behaviour, so as to attract the principles in authorities such as R v Hemsley [2004] NSWCCA 228.
The onus lies on the Offender to establish, on the balance of probabilities, that he suffered from a disorder which had a causal connection to his offending behaviour. Mr Brady submitted that the first report of Dr Nielssen (Exhibit 1, page 8) supported the conclusion that the Offender's panic disorder (in particular) placed him in a state of mind where, when subject to threats and provocation by the deceased, he interpreted the behaviour of the deceased as being more threatening than he might have if he were not affected by an anxiety disorder.
Mr Brady sought as well to rely on parts of Dr Nielssen's report which referred to substantial impairment under s.23A Crimes Act 1900 .
No substantial impairment issue was raised at the trial in reliance upon s.23A, nor was any medical evidence adduced before the jury. The first report of Dr Nielssen was of a type sometimes seen in murder cases where an assessment is made concerning fitness to be tried, and any possible defence by way of mental illness or substantial impairment. The reference to s.23A was brief and, in any event, was not litigated at trial. That part of the report does not assist the Offender.
I note that Dr Nielssen in his reports states that there is no psychotic condition or mental illness affecting the Offender.
I accept that the Offender has a history of conditions referred to by Dr Nielssen. However, I am not satisfied that there was a causal connection, in the sense recognised by law, between any of those conditions and the Offender's crime.
I am not persuaded that any condition from which he suffered had the relevant causal nexus to the crime committed by the Offender on 12 November 2009. The existence of those conditions is relevant to the Offender's subjective circumstances, but I do not think that they operate to reduce his moral culpability or the objective gravity of the offence, nor do they reduce the weight which should be given to general deterrence on sentence.
Victim Impact Statements
Victim Impact Statements were read at the sentencing hearing by the sister of the deceased and on behalf of the cousin of the deceased. I acknowledge the victim impact statements and make the following comments about them: s.29(3) Crimes (Sentencing Procedure) Act 1999 .
The statements reveal the profound consequences upon the family of Mr Darkovski resulting from his death. I express the sympathy of the Court and the community to each member of his family for their loss. One of the purposes of reading victim impact statements publicly in sentencing proceedings is to bring home to the Offender the appalling consequences of his actions extending beyond the death of Mr Darkovski. I have regard to the victim impact statements in the manner permitted by law in this State.
The Offender's Subjective Circumstances
In addition to the reports of Dr Nielssen, a presentence report was available for the purpose of sentence.
The Offender was born in 1955 in Serbia, within the former Yugoslavia. He had a happy upbringing, did well at school and attended a technical high school in Belgrade. He undertook military service and then worked for 10 years as a maintenance worker in a factory.
In 1992, he visited his sister who had moved to Australia and he, thereafter, remained in Australia. He was employed in the construction industry, but suffered a work-related leg injury in 2005 and has not worked since. At the time of the offence, he was in receipt of workers' compensation benefits.
In 1993, he met Ms Savic with whom he has since then been in a mutually supportive relationship, although not living together throughout that period.
The Offender has a criminal history in Australia. In 1993, he pleaded guilty to malicious wounding and was sentenced in the District Court to perform 250 hours' community service. That incident arose out of a domestic dispute with his then partner (not Ms Savic). The Offender, whilst affected by alcohol, produced a knife and stabbed her in the arm. The Offender completed the community service order satisfactorily.
Since then, the Offender has had offences of stealing (for which he was fined in 2006) and malicious damage to property (for which he was placed on a bond in 2007).
The presentence report and reports of Dr Nielssen confirm that the Offender has had a history of alcohol abuse over a number of years, together with, in the period up to and including 2009, abuse of prescribed medication. The Offender had received medical assistance in this regard and was consulting a psychologist, Dr Tomic, in the period leading up to the offence in November 2009.
The report of Dr Nielssen of 12 February 2012 confirms that the Offender is in a substantially better state of health at the present time than he was in November 2009. Abstinence from alcohol, combined with a steady medication regime, appears to have assisted him whilst in custody.
Other Subjective Factors
I accept the Crown submission that the Offender has not displayed any contrition or remorse. The Crown pointed to the fact that Dr Nielssen's report of 1 June 2010 (which followed interviews with the Offender on 17 November 2009 and 9 March 2010) included the following (Exhibit 1, pages 1-2) (emphasis added):
"Mr Volovic [sic] confirmed that he had been charged with the murder of an acquaintance and former workmate of Macedonian origin, Tony Darkovski. He said that his memory of events was not complete. He said that he had not entered a plea to the charge, but hoped to raise the effect of provocation by Mr Darkovski, his own fear of being attacked and his psychological problems in his defence .
When asked to explain what happened in his own words he said 'There is a big story behind this ' . He said that it stemmed from Mr Darkovski, who he said was 'a big drinker' and always short of money . He said that Mr Darkovski was a cement renderer of large build and often boasted about his strength. Mr Vulovic said that he was always careful not to make him angry and always spoke to him in a kind way because he was young."
The Crown submitted that this account suggested that the Offender, even at that early stage, was not denying that he had stabbed Mr Darkovski, but was raising provocation and other matters as his response to the charge. Yet, the Crown submitted, his case at trial was that it was Mr Plavsic who had stabbed the deceased. The Crown submitted that this was entirely inconsistent with contrition and remorse.
Although the quoted part of Dr Nielssen's report provides some support for the Crown's argument, it is stated elsewhere in the report that the Offender, after being knocked to the ground and hitting his head, had no further memory of what took place (Exhibit 1, page 3). At its highest, the point raised against the Offender is that both his ERISP on the day of the offence, and his conversation with Dr Nielssen soon after, raised directly the question of provocation as an available explanation for what occurred. There was no direct assertion that it was Mr Plavsic, and not himself, who had stabbed the deceased.
As I have said earlier (at [38]), I am satisfied that the Offender was aware of more of the events of that day than he disclosed to police in his ERISP, to Dr Nielssen and to the jury. These factors do not assist him on the question of contrition and remorse.
The Crown submitted that considerations of this type do not assist the Offender concerning prospects of rehabilitation, in particular given his earlier stabbing offence in 1993. It is the case that the Offender has had prior experience with the criminal justice system, involving a knife crime committed whilst affected by alcohol. The evidence does not support, nor did Mr Brady submit, that consumption of alcohol by the Offender played any significant part in the commission of the present crime.
The fact that the Offender was convicted at trial, and has not displayed contrition or remorse, does not mean that a favourable finding concerning his prospects of rehabilitation cannot be made: Ali v R [2010] NSWCCA 35 at [48].
I accept that the Offender has reasonable prospects of rehabilitation. In this regard, I take into account, in particular, the passage of time since the 1993 offence, the Offender's present age and health and his age at the time when he will be considered for release on parole, together with the assistance which he will derive from conditional liberty whilst on parole. I do not consider that the position is as bleak as the Crown submits.
Assessing the Objective Gravity of the Offender's Crime
Mr Brady submitted that the objective gravity of this offence was at the low end. He submitted that the deceased was the aggressor, that there was a high degree of provocation by words and conduct, that the stabbing was an immediate response to the provocation, that the intention of the Offender was to cause grievous bodily harm and that he was suffering from disorders which had a real causal connection with his offending behaviour.
The Crown disputed this characterisation of the offence, contending that this was a savage response, with several wounds being inflicted upon the deceased, and with no causal connection with any disorder which may operate to reduce the Offender's culpability.
In my view, the evidence does not permit a finding as to which of the Offender and the deceased instigated the argument, and associated aggressive conduct. It is clear that a verbal argument commenced which included insults from the deceased concerning the Offender and Ms Savic, which were directed to the Offender, leading to a physical altercation between the two men. I consider that this aspect of the Offender's account given in his ERISP on the evening of the incident, formed the real foundation for provocation in this case.
I am satisfied that the Offender and the deceased did not particularly like each other, and that not a great deal was required to lead to friction between the two men. I do not accept the defence submission that the aggressive conduct and words emanated, in a type of one-sided fashion, from the deceased to the Offender.
I accept that Mr Plavsic emerged from his room to witness a strong argument which was already underway between the two men. I accept that insults continued to be directed by the deceased to the Offender during the course of this argument. The incident escalated to a point where the Offender went to his own room and emerged with the nunchakus which he used, unwisely, in an effort to strike the deceased. The deceased was a younger and stronger man.
I accept that there was some physical contact whereby the deceased held the Offender around the neck in a strangling-type action. This served further to provoke the Offender. However, I do not accept that the Offender lost consciousness for a period of time. Rather, I am satisfied that the Offender became free of the deceased and then entered the kitchen in an angry state where he obtained the knife which was used to stab the deceased.
It is clear that provocative words and conduct on the part of the deceased were directed towards the Offender, so as to lead the jury to return the verdict of manslaughter. However, I do not consider that the provocative conduct may be said to constitute a high degree of provocation.
Clearly, the degree of provocation should reduce the objective gravity of the offence and the degree of violence employed by the Offender should increase the objective gravity of the offence: R v Bolt [2001] NSWCCA 487; 126 A Crim R 284 at 288 [35].
By reference to factors identified by Hunt CJ at CL in R v Alexander (1994) 78 A Crim R 141 at 144:
(a) there was a significant degree of provocation offered (leading to the Offender's loss of self-control);
(b) there was a short time only between the provocation and the loss of self-control, culminating in the stabbing of the deceased; and
(c) there was a substantial degree of violence or aggression displayed by the Offender towards the deceased.
This was not a case of a single stab wound which killed the deceased. There were some five wounds inflicted to different parts of the deceased's body. Although I accept that, for the purpose of sentence, the relevant intention established was intention to cause grievous bodily harm, there was a sustained stabbing attack of the deceased by the Offender.
I have already observed that a causal connection between any mental condition or disorder from which the Offender suffered and his criminal conduct has not been established. Even if there was some connection, however, so that he was more prone to overreact to provocation as part of a panic disorder, I do not consider that that condition would operate to reduce the Offender's moral culpability in any significant way, or to reduce the role of general deterrence on sentence.
I am satisfied that the Offender's crime involved a substantial level of objective gravity and moral culpability. I do not accept the defence submission that the objective gravity of the offence is at the low end.
Determining the Appropriate Sentence
The maximum sentence for manslaughter is imprisonment for 25 years.
In R v Forbes [2005] NSWCCA 377; 160 A Crim R 1, Spigelman CJ observed at 27 [133]-[134] that manslaughter is almost unique in its protean character as an offence, that a wide range of circumstances may constitute the crime and that matters of fact and degree arise in all categories of manslaughter.
Of course, a constant factor is that manslaughter involves the felonious taking of a human life. This constitutes a starting point for consideration of the appropriate penalty and a key element in the assessment of the gravity of the objective circumstances of the case: R v Blacklidge (NSW Court of Criminal Appeal, 12 December 1995); R v Stewart [2008] NSWSC 563 at [81].
Manslaughter, even though committed under provocation, is a major crime which calls for a correspondingly grave measure of criminal justice being meted out to the guilty party: R v Morabito (1992) 62 A Crim R 82 at 85.
Mr Brady referred to a number of sentencing decisions for manslaughter by way of provocation. Whilst accepting the statements of courts that sentencing decisions in other manslaughter cases are of limited use, given the wide variety of circumstances in which the crime may be committed, Mr Brady submitted that three cases may offer some limited assistance.
He referred to R v Walsh [2004] NSWSC 111, R v Bullock [2005] NSWSC 1071 and R v Forrest [2008] NSWSC 301.
In R v Walsh , a non-parole period of five years and six months and a total term of seven years and three months' imprisonment was imposed in a case of substantial provocation and violence, involving dismemberment of the body where no psychological disorder affected the offending behaviour. Mr Brady submitted that the present Offender's offence warranted a lesser sentence than in that case.
In R v Bullock , a non-parole period of five years and a total term of eight years' imprisonment was imposed in a case which, it was submitted, involved less significant provocation than in the present case and with a delay between the provocation and the criminal action and with no psychological condition affecting the offender at the time. Once again, Mr Brady submitted that the Offender's offence warranted a lesser sentence than that imposed in that case.
In R v Forrest , a non-parole period of five years and nine months was fixed with a total term of seven years and six months' imprisonment. It was submitted that that case revealed a lesser level of provocation and a less immediate response by an offender who suffered from a psychological disorder at the time. Once again, Mr Brady submitted that a lesser sentence ought be imposed on the present Offender.
I do not consider that these decisions provide a great deal of assistance in this case: R v Green [1999] NSWCCA 97 at [32].
Here, a significant level of provocation occurred with a substantial degree of violence being used by the Offender, immediately after the provocative words and conduct. I have not accepted that any mental condition or disorder is causally linked to the offending conduct so as to reduce the Offender's culpability.
The Offender has a prior history of malicious wounding where a knife was used by him, whilst in an angry state, when apparently affected by alcohol. Although that offence occurred some 16 years prior to the present offence, it does not assist the Offender on sentence.
There is no contrition or remorse. The Offender went to trial and was convicted of manslaughter. No submission was made that he had offered to plead guilty to manslaughter at any earlier time, so as to attract any discount on sentence which would flow as a result of such an offer.
The Offender's subjective circumstances are reasonably favourable. Against the background of an extended period free of alcohol and with a stable medication regime, his prospects of rehabilitation are reasonable, in particular with an extended period of parole supervision.
Mr Brady submitted that the Court should find special circumstances given the Offender's age, the fact that this is his first sentence of imprisonment and the advantages which will flow from an extended period of supervision in the community as an aid to his rehabilitation and the protection of the community. I am satisfied that special circumstances have been demonstrated in this case, so as to warrant a variation in the ratio of the non-parole period to the head sentence for the purpose of s.44 Crimes (Sentencing Procedure) Act 1999 .
Having regard to all relevant objective and subjective features, I am satisfied that the appropriate sentence in this case is a non-parole period of six years with a balance of term of three years. The Offender has been in custody since 12 November 2009 and the sentence should operate from that date.
Orders
Milija Vulovic, would you please stand. For the crime of manslaughter of Tony Darkovski, I sentence you to imprisonment by way of a non-parole period of six years commencing on 12 November 2009 and expiring on 11 November 2015, with a balance of term of three years commencing on 12 November 2015 and expiring on 11 November 2018.
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Decision last updated: 15 March 2012
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