Regina v Bryant

[2000] NSWSC 245

CITATION:	Regina v Bryant [2000] NSWSC 245
FILE NUMBER(S):	SC 70029/98
HEARING DATE(S):	01/11/99-01/12/99
JUDGMENT DATE:	8 March 2000
PARTIES :	Regina Adam Scott Bryant
JUDGMENT OF:	Dowd J at 1

COUNSEL :	Crown: Ms Robinson Prisoner: Mr Boulton
SOLICITORS:	S.E. O'Connor
CATCHWORDS:	diminished responsibility - manslaughter - drug addiction - prisoner suffering from delusional paranoid schizophrenic disorder - maliciously inflicting grievous bodily harm - totality
LEGISLATION CITED:	Crimes Act 1900 Victims Rights Act 1996 Sentencing Act 1989
CASES CITED:	Regina v Byrne (1960) 2 QB 396 Regina v Tumanako (1992) 64 A Crim R 149 Regina v De Souza (unreported, NSW CCA 3 July 1997) Regina v Falconetti (unreported, NSW CCA 24 March 1992) Regina v Wright (unreported, NSW CCA 28 February 1997) Regina v Troja (unreported, NSW CCA 16 July 1991) Regina v Previtera (1997) 94 A Crim R 67 Regina v Lean (unreported, Matthews J 13 August 1993) Regina v Elvin Ricky Gunes (unreported, Newman J 26 Februatry 1999) Regina v Veen (No.2) 164 CLR 474 Regina v Pearce (1989) 103 A Crim R 372
DECISION:	Manslaughter: sentenced to a period of imprisonment of eleven years comprising a minimum term of seven years and an additional term of four years.; Maliciously inflict grievous bodily harm: sentenced to a fixed term of two years concurrent

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

DOWD J

WEDNESDAY 8 MARCH 2000

70029/98 - REGINA v ADAM SCOTT BRYANT

SENTENCE

1   The prisoner Adam Scott Bryant was indicted that on 4 January 1998 at Bundeena that he did murder Melissa Gai Collins. The prisoner pleaded not guilty, that plea of not guilty being on the grounds of mental illness. At the conclusion of the trial, counsel for the prisoner sought, in addition to that not guilty plea, that the defence of not guilty of murder but guilty of manslaughter on the grounds of diminished responsibility be also left to the jury. I acceded to that request.

2   The jury found the prisoner not guilty of murder but guilty of manslaughter. That finding by the jury, therefore, was a finding of guilty of manslaughter on the grounds of diminished responsibility and a rejection of the plea of not guilty on the grounds of mental illness.

3   The prisoner was subsequently charged and pleaded guilty before me that on 22 December 1997 at Cronulla, that he did maliciously inflict grievous bodily harm upon Kevin Norman Levitt.

4   In relation to manslaughter, I find the following facts. The prisoner and the deceased had been involved in a close personal relationship that lasted for a period of some five months, largely involving cohabitation, ending in October 1997. It was a self-destructive relationship with periods of intensive affection and violent mood changes involving heavy and regular drug taking by both. After the relationship ceased, the deceased was very persistent in trying to reconcile with the prisoner who had at one stage travelled up the coast to his mother's place to get away from the deceased. The deceased would repeatedly ring him and plead with him to return.

5   The prisoner returned from his mother's place and some time after Christmas Day 1997 moved into a small three-bedroom cottage in Bundeena with his friend David Maher. Whilst residing there, the prisoner contacted the deceased so she could get her mobile phone from him. The deceased drove over to where the prisoner was staying in Bundeena and, when there, argued with the prisoner over drugs, money and their relationship. The prisoner had been consuming various drugs over the few days prior to the events giving rise to this charge.

6   On the night of 3-4 January 1998, David Maher's sister, Rachel Maher, who lived at the premises, heard the deceased and the prisoner arguing and asked them to go outside. She then heard screaming coming from outside the house and then the front door open and close. The next time Rachel Maher saw the prisoner, he was sitting in the lounge room by himself. He was upset and annoyed and made a number of derogatory comments to her about the deceased. The prisoner apologised for the noise that had occurred and Rachel Maher then went back to bed.

7   At about 7.30 that morning Tara Campbell, who was also a resident in the premises, was in her bedroom when she heard sounds in the nature of lovemaking coming from the adjoining bedroom, which the prisoner and the deceased were occupying.

8   About half an hour later, Rachel Maher went into the room where they were both sleeping lying naked, face down on a mattress on the floor. Later in the morning Rachel roused at them both for making a mess in the house and told them to pack their stuff and get out of the house. About ten minutes later, the prisoner came out and apologised to Rachel for the mess. Rachel then told him he could stay.

9   Some time afterwards the prisoner was in the laundry area of the house washing out a hypodermic syringe. He was tense and agitated as though affected by drugs, constantly moving, and at one point he challenged Glen Maher, the brother of David Maher to spar with him. The prisoner then went into the dining room where the deceased had been sorting through some property. They were then getting on very well in an intimate, affectionate manner.

10   Rachel Maher then made coffee for herself, the prisoner and the deceased. Whilst Rachel was in the kitchen, the deceased and the prisoner started arguing loudly in the dining room. Maher then heard a loud crash or banging noise and turned around to find the deceased lying flat on her back on the floor. The prisoner was over the top of the deceased straddling her. The deceased was trying to push his hands away from her face. The deceased said, "Adam, all right, I'll give it to you, I'll give it to you then". The prisoner then punched the deceased repeatedly in the vicinity of her cheek with a closed fist.

11   Rachel Maher called out to the prisoner to stop, but he told her to shut up and continued to punch the deceased. Rachel continued screaming at the prisoner to stop and he looked up at her and said, "Nah, I'm going to kill her". Rachel Maher continued to plead with the prisoner to stop and let her go, but the prisoner said, "No, I can't do it. I'm going to kill her". Rachel Maher said, "You can't do this. You can't do this in front of Owen". Owen was Rachel's small son. The prisoner then said, "Yeah, you're right, get the little fella out of here". Rachel then ran out the back door taking Owen with her.

12   Rachel then ran down the flight of stairs and went to the side of the house to a window where she was able to hear what was going on inside. She heard the sounds of thuds coming from inside and could hear the prisoner saying, "Shut up. Shut up". She then heard a door bang.

13   Rachel Maher then went back inside the house. The prisoner came out of her brother's bedroom with blood on his shirt. The prisoner then said to her, "Come on, we've got to get out of here". The prisoner then picked up some keys from the table and whispered to Rachel, after she had asked where the deceased was, "I've necked her".

14   The deceased, who was lying on her back on a mattress, had sustained three stab wounds to her chest and her throat had been cut. She died from a fatal stab wound to the heart. The wound to her throat was inflicted after the injuries to her chest, in particular the fatal blow to her heart. The wounds were inflicted by the prisoner.

15   After the death of the deceased, the prisoner ran from the house and went to Gunyah Beach, climbed down to the bottom of the cliff and swam out to sea. He later said that he had wanted to die. He was seen by some bushwalkers drifting out to sea, but afterwards swam across to Cronulla. He said that he had decided to save himself. Over the ensuing days, he then made his way to his father, who was living in Townsville.

16   Arrangements were then made for the prisoner to retain a solicitor in Sydney. The prisoner was then escorted by his family back to Sydney and on 13 January 1998 went to see a Dr Roberts, psychiatrist.

17   The prisoner, after seeing Dr Roberts, then surrendered himself to the police in the company of his solicitor. He was taken into custody and imprisoned, being then transferred to the Long Bay Gaol D Ward, part of the prison hospital, for psychiatric assessment where he spent about three weeks under the care of a Dr O'Dea, a psychiatrist in the service of the prison.

18   As to the background facts and medical history, much of the evidence during the trial focused on the prisoner's mental state prior to and at the time of the murder, as well as the prisoner's history of drug taking. There was detailed evidence about the prisoner's previous admissions to hospital, after having show paranoid behaviour that was considered strange or unusual, as well as evidence from the prisoner's friends as to his unusual behaviour.

19   The prisoner, who is now thirty-one years of age, has been using drugs since he was ten years old, starting with marijuana, and drinking alcohol since the age of six. His mother and stepfather were users of marijuana and, growing up, he thought smoking it was the norm. At the age of thirteen, the prisoner was binge-drinking alcohol each weekend, consuming rum; and at the age of fourteen he was using amphetamines and LSD. He had tried cocaine and heroin a few times but did not like them.

20   The prisoner had been using drugs heavily for most of his life, but particularly for some weeks up to the date of the killing. He was taking amphetamines, marijuana and some alcohol in the period between Christmas 1997 up to that date. Various witnesses attested to this, and also attested to the fact, which I accept, that the prisoner had a remarkably high tolerance for alcohol and the various drugs that he was taking, and it was very difficult to know by observation of him the extent to which the prisoner was intoxicated.

21   During the period from New Year's Eve to 4 January 1998, the prisoner barely slept. He was continuously taking drugs and in an exuberant state. He was constantly arguing with the deceased and was, at times, aggressive. The prisoner was scared and jittery, he did not want to talk about things and talked in riddles. The prisoner's behaviour would change when he was with the deceased, he would be angry and frustrated and did not want to be around her. He was obsessed with the conduct of the deceased towards him.

22   The prisoner has a long history with psychologists and psychiatrists, commencing at the age of fourteen when he was assessed by a psychologist, because of his drug taking and because he was found to have stabbed boys in his class with a compass. Throughout the 1990s, the prisoner went to a Dr Horsfall a number of times for treatment. Dr Horsfall noted the prisoner's behavioural problems were characterised by drugs and violence.

23   When the prisoner was twenty two, he attempted suicide by putting an electric toaster into a sink of water and after receiving a severe shock he was rushed to hospital. He was administered Prothiaden and Prozac, however he did not take them after that as he felt they were of no help and made him feel "hyper".

24   By the end of 1993, after continued use of alcohol, cannabis and amphetamines, the prisoner was admitted to Wisteria House at Cumberland Hospital for detoxification.

25   In September 1997, about two months into his relationship with the deceased, the prisoner attended Sutherland District Hospital after experiencing auditory hallucinations, he had heard voices telling him that he had AIDS and that the deceased, then his girlfriend, was a lesbian who had been making pornographic movies. He was admitted as an involuntary patient for three days.

26   Whilst at Sutherland the prisoner asserted to his treating doctor that the deceased had had a sex change and that he was concerned that people were talking about him behind his back. The deceased told the doctors that the prisoner had been like this for several weeks. He was prescribed Largactil and other anti-psychotic medication.

27   Prior to his prison admittance, the prisoner made phone calls to his father asking whether his father had heard whether he, the prisoner, had had AIDS. Whilst at the hospital, the prisoner contacted his father numerous times, each phone call referring to people from many years before whom his father did not know.

28   On the next occasion he was taken to Sutherland Hospital, some three weeks later, the prisoner was then displaying paranoid behaviour, after having smoked Hydropot. He was very agitated and anxious and asked his mother questions as to whether the deceased was a man, whether he, the prisoner, was homosexual, whether the deceased had had a sex change operation and whether the deceased was his stepmother, the latter being a person who had indulged in inappropriate sexual conduct with the prisoner as a child.

29   He was examined by a psychiatric nurse, who considered the prisoner not to be suffering any psychotic symptoms and arrangements were made for him to attend the Langton Clinic, attached to Sydney Hospital, the next day for assessment as to his suitability as an inpatient for purposes of detoxification. At Langton Clinic, however, he was assessed as suitable as an outpatient despite vigorous opposition from his mother, who wanted him admitted. He was given medication, told to return in a few days' time; the prisoner predicably did not return. It was a pity he was not admitted.

30   Between his admission at the Sutherland Hospital on 27 September 1997 and the events the subject of this sentence, the prisoner made several phone calls to his father telling his father that he was scared for his life. The prisoner was edgy, anxious and fearful and his beliefs would often grow into concrete and well-formed delusional thoughts which centred on the deceased. His conduct was often paranoid and his mood changed frequently. There was evidence before me, which I accept, that the use of amphetamines and, indeed, use of marijuana may well increase a paranoid pre-existing condition.

31   The deceased was often regarded by the prisoner as someone who was trying to damage him or harm him. In that sense, the prisoner had beliefs that the deceased was involved in a plot to kill him with the aid of such underworld figures as Neddy Smith, Roger Rogerson and Arthur Loveday, the last-named actually being the deceased's previous boyfriend. The prisoner would often ask further questions, like whether the deceased was a man, a porn star or a lesbian. Shortly after the killing, the prisoner asserted to his brother that the deceased was a member of a cult who lured men into cutting off their own penises.

32   At times the prisoner also believed that people close to him took on other people's identities. He thought that the deceased was Kath Flannery, the wife of the criminal Christopher Dale Flannery; that the deceased's brother was part of the conspiracy to kill him; that his own father was a hit man and his sister was an agent of the CIA.

33   David Maher gave evidence that the prisoner told him that the prisoner was very frightened that something was going to happen to him and that he thought that Arthur Loveday, Roger Rogerson and Lenny McPherson were going to do something to him. David Maher said that the prisoner continually referred to his fear, but never articulated exactly what he was frightened of. He just asked that Maher contact his father. During the latter part of these delusions, Lenny McPherson was in fact deceased.

34   The prisoner had also expressed fears to a friend, Steve Montgomery, who about two weeks before the killing invited the prisoner to stay with him after he had seen the prisoner in the street in Cronulla with his clothes and personal effects. Whilst staying the night, the prisoner attacked Montgomery accusing him of having an affair with the deceased, even though Montgomery did not know the deceased.

35   Dr Roberts, the psychiatrist, in his examination of the prisoner on 13 January 1998, found the prisoner to be tense, agitated and depressed. His evidence was that the prisoner only had a mild degree of thought disorder, but was nevertheless delusional and paranoid. Dr Roberts was of the view the prisoner had murdered the deceased while in a drug-induced psychosis.

36   On 15 January 1998, some three days after the prisoner had been taken into custody, the prisoner told Dr O'Dea the voices and other symptoms had rapidly diminished since he had been in gaol. Dr O'Dea opined this was consistent with the features of a drug-induced psychosis and also consistent with the prisoner having used drugs around 10 January 1998.

37   The prisoner doctors decided not to treat the prisoner with any form of anti-psychotic medication. Within two or three weeks his illness had improved and largely resolved. He was discharged from hospital and moved to another part of the prison, where he remained.

38   On several occasions whilst in prison, the prisoner was treated by Drs Westmore and Niellsen, psychiatrists, until about November 1998.

39   On 10 February 1998, when the prisoner saw Dr Niellsen, the prisoner was anxious about his surroundings. He related his beliefs that his sister worked for the CIA, that his father was a hit man for ASIO and that the deceased was responsible for the killer Martin Bryant and the Port Arthur massacre. Dr Niellsen, after questioning the prisoner about those beliefs, concluded that the prisoner did not have delusional persecutory beliefs because when challenged he agreed that they probably were not true. Dr Niellsen assessed the prisoner as having an adjustment disorder, anxiety and depression, as well as a grief reaction which was clear enough to be of clinical significance. The prisoner, who had been taking Zoloft, an anti-depressant drug, at the time continued the medication on the advice of Dr Niellsen.

40   In May 1998, when next assessed by Dr Niellsen, the prisoner remained unchanged. He was depressed, had difficulty sleeping and was suicidal. Dr Niellsen formed the impression the prisoner was suffering from some form of adjustment disorder and prescribed medication. Dr Niellsen opined that it was possible for someone to have a resolving psychosis and also simultaneously to be suffering from a reactive depression.

41   By September, when Dr Niellsen examined the prisoner again, he found the adjustment disorder to have resolved, but that the prisoner should continue the Zoloft treatment.

42   Dr Lucas, who gave evidence on behalf of the Crown, opined that when he saw the prisoner on 12 April 1999 the prisoner did not appear to have been suffering from any form of psychiatric condition at the time of the killing. Dr Lucas' evidence was that the prisoner was intoxicated with amphetamine, but not psychotic, and the only established episode of psychosis that occurred was in September 1997.

43   In his last report tendered before me on the sentence proceedings, Dr Lucas remained of the view that at the time of the killing the prisoner was not suffering from any psychotic illness and was not suffering from any abnormality of the mind. Contrary to his previous reports, however, Dr Lucas introduced a new dimension, stating the prisoner appeared to have a severe anti-social personality disorder. That evidence had not been put to the jury, although it was put to the Court on sentence. Although I accept the evidence that he may well have had a severe anti-social personality disorder, I do not accept that was the only condition from which he suffered. Insofar as Dr Lucas purports to substitute this latter diagnosis for his previous diagnoses, I reject that evidence.

44   Drs Roberts and Westmore, who gave evidence on behalf of the prisoner, were of the view that his mental responsibility was totally impaired. When Dr Roberts examined the prisoner for the third time on 16 October 1999, prior to the trial commencing, he reported the prisoner to have changed substantially as a result of the medical treatment that had been given to him by the Prison Medical Service. He had been treated with Zyprexa, an anti-psychotic drug, as well as Cipramil for anxiety and depression. Dr Roberts, in his report of 18 October 1999, concluded that the prisoner had a good prognosis for future stability provided he maintained his medication intake and abstained from non-prescription substance abuse. This prognosis was not a reasonable projection, in that the likelihood of the prisoner abstaining from non-prescription substance abuse and maintaining his medication was fairly low.

45   When the prisoner was examined by Dr Westmore in April 1999, he said that there were things going on in his head at the time of the killing, that the deceased was the devil and he was God and that he had to kill the deceased to save himself and save the world. The prisoner also told Dr Westmore that, whilst he was stabbing the deceased, her face changed a couple of times, first to the shape of a demon then to the shape of a pig, then she had an Asian face.

46   Dr Westmore's evidence was the prisoner was severely psychotic, that his psychosis was a disease of the mind and was of a schizophrenic type. Dr Westmore believed that the prisoner's illness was either caused or aggravated by his substance abuse.

47   In his report of 28 October 1999, exhibited before me, Dr Westmore concluded that the dramatic conclusion in the prisoner's presentation and the near complete resolution of his mental state was supporting evidence of the presence of psychotic processes at the time the homicide occurred.

48 For the determination of diminished responsibility, s.23A of the Crimes Act 1900 (the Act) provided relevantly at the time of the offence:

"s.23A(1) Where, on the trial of a person for murder, it appears that at the time of the acts or omissions causing the death charged the person was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for the acts or omissions, he shall not be convicted of murder.
(2) It shall be upon the person accused to provide that he is by virtue of subs (1) not liable to be convicted of murder.
(3) A person who but for subs (1) would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter ..."

49 In order for the defence to succeed, it is necessary for the prisoner to establish on the balance of probabilities that at the time of the offence he was suffering from an abnormality of mind, that is a state of mind so different from that of ordinary human beings that a reasonable person would term it abnormal; such abnormality of mind must arise from one of the specified causes in parentheses in s.23A(1) of the Act; and that such abnormality must be such as substantially impaired his mental responsibility for what he did.

50 Abnormality of the mind in this context includes the lack of or reduced ability to exercise willpower to control physical acts in accordance with rational judgment: R v Byrne (1960) 2 QB 396 at 403; R v Tumanako (1992) 64 A Crim R 149 at p.151.

51   In R v De Souza (unreported, 3 July 1997) at p.28 the NSW Court of Criminal Appeal outlined a number of statements of principles when assessing diminished responsibility:

"Although:
(1) in a case in which the accused is charged with an offence of only 'basic intent', evidence of intoxication - even voluntary - is relevant in determining whether an act of the accused is voluntary: ( Regina v Ryan; Regina v O'Connor) ;
(2) in a case in which the accused is charged with an offence requiring a specific intent, evidence that, at the time of the commission of the offence alleged, the accused was in an intoxicated state - even though due to the voluntary consumption of alcohol and drugs - can bear upon the question whether the Crown has established that, at the relevant time, the accused had that specific intent ( Regina v Jones; Viro v Regina; Cutter v Regina );
(3) mental impairment due to disease or injury in the form of brain damage arising out of past alcohol or drug usage may be sufficient to constitute an 'abnormality to mind' for the purposes of s 23A of the Act ( Regina v Jones; Regina v Chester; Regina v Tandy) ;
(4) in a case where the subject person's alcoholism has reached a stage where, although the brain has not been damaged to such an extent, the subject person is no longer able to resist the temptation to drink - the taking of alcohol thus being, in effect, involuntary - that itself may constitute an 'abnormality of mind' which might found a defence of diminished responsibility ( Regina v Fenton; Regina v Tandy) ;
as a general rule
(5) semble , the state of intoxication due to the taking of alcohol or drugs is not to be regarded as an abnormality of the mind for the purposes of s 23A of the Act ( Regina v Di Duca; Regina v Fenton; Regina v Miers; Regina v Jones; Regina v Whitworth; Regina v Nielsen) ;
(6) a condition involving disinhibition and/or behaviour which has been modified as the result of a state of intoxication due to the taking of alcohol or drugs is not to be regarded as a condition 'arising from ... inherent causes' ( Regina v Fenton; Regina v Gittens; Regina v Miers) ;
(7) semble , although the effect upon the brain of alcohol and at least some narcotic drugs seems generally to be described as 'a toxic effect' ( Regina v Di Duca ; Regina v Miers) , in the absence of organic brain damage a condition involving disinhibition and/or behaviour which has been modified as the result of a state of intoxication due to the taking of alcohol or drugs is not to be regarded as a condition 'induced by disease or injury' ( Regina v Sanderson) - that phrase is to be regarded as referring to abnormalities of the mind due to organic or physical injury of disease to the body including the brain, 'functional mental illness' as a permissible cause of abnormality of the mind being included by the words 'arising from ... any inherent causes' ( Regina v Sanderson) ."

52   I do not consider that the prisoner was in such an intoxicated state as to prevent his actions being voluntary. Although he was affected by alcohol, I do not consider that it was the alcohol as much that was the cause of his actions.

53   Although I do not accept all of the statements made by the prisoner to the various doctors post the killing as actually having been in his mind at the time of or prior to the death of the deceased, either through conscious or unconscious reconstruction, I reject the view that the prisoner was simply suffering from an anti-social personality disorder.

54   His history shows that, over a long period of time, the prisoner was suffering from a delusional paranoid schizophrenic condition and that he suffered, from time to time, from psychoses and periods of delusions. I find that although the accused was not suffering from a disorder of the mind such as to make him not guilty on the grounds of mental illness, he was nonetheless, as diagnosed by Dr Roberts and Dr Westmore, that his mental responsibility for his acts or omission at the time of the killing was substantially impaired.

55   I find that at the time of the killing he was suffering from such an abnormality of mind, being a delusional paranoid schizophrenic state, particularly in relation to the deceased, that that disease acted to substantially impair his mental responsibility for his acts in stabbing the deceased.

56   I find beyond a reasonable doubt that the act of the prisoner in stabbing the deceased caused her death and, beyond a reasonable doubt, that the nature of his act was a dangerous act carrying an appreciable risk of serious injury. I find that the prisoner would be otherwise guilty of murder as having the necessary intent other than for the fact, as I have found herein as set out above, he was suffering from a substantial impairment of his mental responsibilities. I therefore find the prisoner not guilty of murder but guilty of manslaughter, that finding being on the basis of the prisoner's diminished responsibility.

57   Manslaughter carries a maximum penalty of twenty-five years' penal servitude. However, manslaughter is an offence where sentences imposed vary more than any other serious crime under the law. The Court has been assisted by having drawn to its attention various authorities, but it must be said that although assistance can be drawn from the consideration of similar cases, sentencing in these types of cases is a sensitive and difficult task: R v Falconetti (unreported, Court of Criminal Appeal 24 March 1992).

58   Whatever form homicide may take, it has always been recognised as a most serious crime. The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in the expectations of the system, and the community is entitled to have the conduct denounced by a sentence which is appropriate in the circumstances. Sadly, the community does not always understand the difference between a sentence for murder and a sentence for manslaughter and the different regime that applies in applying sentencing law.

59   I have taken into account, on the one hand, the fact that an offender suffering from a reduced mental capacity may operate as a mitigating factor in sentencing; also considerations of general or even personal deterrence are not as relevant in cases of manslaughter not involving diminished responsibility and the significance of an offender's mental incapacity must be evaluated in the light of the particular circumstances of the individual case: R v Wright (unreported, NSW Court of Criminal Appeal, 28 February 1997).

60   However, in R v Troja (unreported, NSW Court of Criminal Appeal, 16 July 1991), it was held that each offence of manslaughter tends to be idiosyncratic and has its own factors which must be taken into consideration in each case when sentencing.

61   The prisoner was born in Sydney, had led a very unsettled life moving from place to place having only sporadic contact with his parents. His father was a Vietnam veteran and had been violent towards the prisoner whilst he had been growing up. His parents divorced when the prisoner was four years old. His father remarried, soon afterwards, to a woman who lived next-door to him.

62   After his parents divorced, the prisoner lived some time with his father and some with his stepmother and stepfather, but left home at fifteen to live with his grandparents because his stepmother had been cruel and violent toward him. I accept the evidence that the prisoner's stepmother had exposed him to inappropriate sexual conduct and that he had been sexually abused by a friend of his father's who was looking after him.

63   The prisoner, who is of average intelligence, attended school until he was seventeen, leaving to work in Townsville for two months. He returned to Sydney to work for an excavation firm as a labourer, where he worked for sixteen months but was sacked for being drunk and causing a rampage.

64   The prisoner has had two serious relationships prior to that with the deceased, the first lasting four years and the other sixteen months. At the age of nineteen he became engaged to a friend of his from high school, but they did not marry. The prisoner was with the deceased, as I have indicated, for five or six months.

65   It seems to me clear that in a controlled environment the prisoner does respond to appropriate medication. His history within the prison system demonstrates a pattern of responding to treatment.

66   The prisoner does not have a substantial criminal record, nor does he have any convictions for violence. He is still a young man who has had an appalling upbringing in a disruptive parental atmosphere and has had a sorry history of early drug addiction, which addiction may have brought on the pattern of psychosis and delusions and paranoia, from which he has suffered. As I have indicated, it is a pity that he was not given the opportunity to become detoxified in late 1997, as he wished.

67 I have been furnished with a Victims Impact Statement on behalf of the family of the deceased, under the involved Victims Rights Act 1996. The Court is acutely conscious of the distress that the death of the deceased must have caused and will continue to cause. However, in accordance with the decision of Hunt CJ at CL in Regina v Previtera (1997) 94 A Crim R 67 at 84 and 85, I am unable to consider the Victims Impact Statement in determining punishment for the offence. It is regretted that the legislature has created an impression that the Court can take this into account in these circumstances. It is important however that the statement is noted by the Court.

68   I must also say this trial must have been particularly distressing for Mrs Samuels, the deceased’s mother and the other members of the deceased's family. It is so often the case that people who are not present at a criminal trial are not able to defend themselves and put their actions in a fair context, and that makes a hearing of this nature about someone such as the victim, who had had a very difficult and troubled life, for the family to hear blame and criticism cast upon her to add to the trauma for that person's loss.

69 In sentencing for manslaughter on the grounds of diminished responsibility, I have been referred to a number of cases where there has been some similarity but that similarity is somewhat superficial. Those authorities are R v Lean (unreported, Matthews J, 13 August 1993), R v Elvin Rickey Gunes (unreported, Newman J, 26 February 1999) and, in particular, R v Falconetti, to which I have referred, where Matthews J sentenced the prisoner to seventeen years' imprisonment, comprising of a minimum term of five and a half years and an additional term of eleven and a half years. The appeal on that matter was dismissed, the Court approved her Honour's application of the principles in R v Veen (No. 2) 164 CLR 474 in her application to a determination of manslaughter pursuant to s 23A of the Act.

70   I have considered that decision carefully, in particular at p 476 where the Court said:

"The purposes of criminal punishment are various: rejection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. There are guide posts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality that makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects, one which tends towards a longer custodial sentence, the other towards a shorter. These effects may be balanced out."

71   I have considered the authorities referred to and the submission of Mr Boulton, for the prisoner, in which he suggested that the minimum term for the offence of manslaughter should be between four and seven years, and also what has been said by the learned Crown.

72   I have considered the general purposes of punishment, not only as set out in R v Veen (No. 2), and in that respect I am conscious of the difficulty of rehabilitation for the prisoner and that to some extent, even though a period of supervision is clearly needed after full-time imprisonment, no matter how long a period of supervision he receives, there is a likelihood that whatever treatment he receives under supervision he is not likely to continue with and that there is a reasonable probability that he will return to drug abuse. I accept in the present case that there is no point in looking to arguments of general deterrence or indeed specific deterrence. There is, however, need to look at the specific objective seriousness of the offence in the taking of a human life.

73   It is clear that the penalty in these proceedings must be commensurate with the seriousness of the crime, but the Court is obliged to take into account the mental state of the prisoner that I have referred to. I do not consider that an artificially long term of supervision will necessarily resolve the prisoner's medical and mental problems or the difficulty of readjusting to society and coping with his predilection for multiple drug abuse.

74   It is clear, however, that there should be some lengthening of the additional term of imprisonment in terms of s 5 (2) of the Sentencing Act 1989. I find there are special circumstances under that section in the medical problems and background history of the prisoner and his need for close supervision for a period after full-time imprisonment. I propose to reflect this in the sentence that I will impose. During the additional term, I would recommend to those responsible for supervision that the prisoner be subjected to close supervision as to the medication that he takes and that he is not taking mind altering substances and that such supervision should appropriately include urine analysis or similar means of detecting drug consumption.

75   I propose to impose a sentence on the offence of manslaughter as part of the consideration of the totality of criminality of that offence and the other offence of maliciously inflicting grievous bodily harm, that the Court has under consideration for sentence.

76   In relation to the maliciously inflicting grievous bodily harm count, the prisoner and the victim had an association for about six months. Around 14 December 1997, the prisoner moved in to live with the victim until he could find alternate accommodation. However, on 22 December 1997, the victim informed the prisoner that he would have to leave the premises and find somewhere else to live.

77   At about 9.15pm that evening, the prisoner, the victim and the victim's girlfriend were lying in the lounge room watching television. The victim smiled at the prisoner and mouthed the word "baby", a word calculated to cause the prisoner to react. The prisoner picked up an aluminium baseball bat and forcefully struck the victim in the face with the bat and then left the premises. As a result of the assault, the victim sustained a two and a half inch fracture to his jaw and fractures to his cheek which required him to have a jaw and cheek reconstruction. He lost numerous teeth from his upper and lower jaw and still has facial injuries from which he suffers. The Court sympathises with the victim for what he has sustained.

78   I was originally furnished with a Victims Impact Statement which contained some material which was not admissible in this proceeding and I had disregard to that which was not properly included. However, the victim, Mr Levitt, sustained a serious injury with ongoing physical effects and continual problems arising from those physical effects. The blow struck has caused him serious physical consequences that he will have for the rest of his life.

79   Although the actions of the victim towards the prisoner were provocative in the lay sense of that word rather than in the legal sense, the prisoner had no justification for taking the action that he did. It is likely that the prisoner was at least partially affected by some drugs, probably amphetamines, at the time of the offence.

80   On the afternoon of 26 December 1997, the prisoner attended Cronulla Police Station on this charge. He was arrested and taken to Miranda Police Station where he participated in an electronic interview, exhibited before the Court. He made a number of admissions in relation to the assault and stated that he struck the victim because the victim had called him names and had antagonised him over a period of time. He expressed remorse for the incident and stated he did not intend to use as much force as he did.

81   The prisoner was not arraigned on the malicious grievous bodily harm charge at all prior to the return of the jury on the manslaughter verdict, not having been before the jury. The prisoner therefore, when arraigned, pleaded guilty, that being the first opportunity that he had to do so and I take into account that notwithstanding it is quite some time after the events giving rise to injuries to the victim Levitt that the prisoner pleaded guilty at the earliest opportunity and I propose to discount the sentence that would otherwise have been imposed for that reason.

82   I find the facts proved beyond a reasonable doubt to support the malicious grievous bodily harm charge.

83   I agree with the submission that the objective seriousness of the offence is quite high and requires a gaol sentence. It has been submitted to me that on the statistics provided by the Judicial Commission that people are sentenced to terms up to two years and an additional term of three years in total.

84   I propose therefore to sentence the prisoner, for the crime of manslaughter, to a term which will reflect the totality of criminality for both offences. I will separately sentence the prisoner for the offence of inflicting grievous bodily harm but that latter sentence will be served concurrently with the first sentence.

85   I have taken into account the plea of guilty for the latter offence and the prisoner's troubled background. I do, however, also take into account that, except for expressions of contrition or remorse through the words of other people, the prisoner has not expressed remorse or contrition to the Court.

86 In accordance with the principles established in R v Pearce (1998) 103 A Crim R 372 at 382 I fix an appropriate sentence for the crime of manslaughter at a total of ten years being a minimum term of six and a half years and an additional term of three and a half years, and for the sentence of maliciously inflict grievous bodily harm I fix a sentence of two years being a minimum term of eighteen months and a an additional term of six months.

87   Adam Scott Bryant, you have been found guilty of manslaughter on the grounds of diminished responsibility. You are convicted of manslaughter and in sentencing you, as I have indicated, I intend that this sentencing will reflect the criminality of the offence of manslaughter and the offence of maliciously inflicting grievous bodily harm.

88   For the offence of manslaughter, you are sentenced to a total period of imprisonment of eleven years. That sentence is to comprise a minimum term of seven years and an additional term of four years. Taking into account the time that you have served, that minimum term is to commence on 13 January 1998, when you were taken into custody, and to conclude on 12 January 2005, from which date the prisoner will become eligible for parole and the additional term of four years will commence on 13 January 2005 and will conclude on 12 January 2009.

89   For the offence of maliciously inflicting grievous bodily harm, you are convicted and sentenced to a fixed term of two years commencing on 13 January 1998 and concluding on 12 January 2000, such term is, of course, concurrent with the previous term imposed for the offence of manslaughter as the manslaughter sentence includes the total criminality of both offences.

Last Modified: 09/25/2000