Regina v Djuro Ukropina

[2015] NSWDC 306

District Court

New South Wales

Medium Neutral Citation:	Regina v Djuro Ukropina [2015] NSWDC 306
Hearing dates:	4 December 2015
Date of orders:	10 December 2015
Decision date:	10 December 2015
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1. Taking into account all of those matters, the offender is convicted. He is sentenced to a term of imprisonment of 6 years and 9 months with a non-parole period of 4 years and 9 months to date from 14 November 2013. 2. The offender will be eligible to be released on parole on 13 August 2018.
Catchwords:	CRIME – murder – manslaughter – plea of guilty - lesser charge – abnormality of mind – underlying mental condition – substantial impairment – capacity to understand events – stabbing – liability of offence MENTAL HEALTH – impairment – psychiatric evidence – behaviour – underlying condition – treatment plan SENTENCE – mitigating factors – aggravating factors – objective seriousness – specific deterrence – general deterrence – appropriate penalty – imprisonment – conviction SENTENCE PRINCIPLES –community values – remorse – contrition – no other penalty appropriate – special circumstances – first time in custody
Legislation Cited:	Crimes Act 1900 (NSW) ss.18, 23A, Crimes (Sentencing Procedure) Act 1999 ss. 5, 21A, 22
Cases Cited:	Veen v R (No 2) (1988) 164 CLR 465 R v McNaughton (2006) 66 NSWLR 566 Baumer v R (1988) 166 CLR 51 BW v R [2011] NSWCCA 176 R v Wilkinson (No 5) [2009] NSWSC 432 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Borkowski (2009) 195 A Crim R 1 Barbaro v The Queen (2010) 253 CLR 58 Hili v The Queen (2010) 242 CLR 520 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Palijan v R [2010] NSWCCA 142 R v Scognamiglio (1991) 56 A Crim R 81 R v Wright (1997) 93 A Crim R 48 and R v Lawrence [2005] NSWCCA 91 Muldrock v R (2011) 244 CLR 120 R v Keceski (unreported, 10 August 1993, NSWCCA) R v Low (1991) 57 A Crim R 8 R v Dawes [2004] NSWCCA 363 Taber v R (2007) 170 A Crim 427 R v MD (2005) 156 A Crim R 372 R v Blacklidge (unreported, 12 December 1995, NSWCCA) R v Forbes (2005) 160 A Crim R 1 R v Green [1999] NSWCCA 97
Category:	Sentence
Parties:	Regina (Crown) Djuro Ukropina (Offender)
Representation:	Counsel: Mr G Newton (Crown) MS C Loukas SC (Offender)     Solicitors: S Kavanagh, Solicitor for Public Prosecutions NSW (Crown) SE O’Connor, Legal Aid NSW (Offender)
File Number(s):	2013/344725

SENTENCE

Facts

1. The parties presented a lengthy Agreed Statement of Facts, which can be summarised as follows.

2. The offender was born in Serbia in 1956. He married Branislava (Brana) in 1981. They had two daughters, Jovana, born in 1982, and Ivana (the deceased), born in 1984. The family emigrated from Serbia to New Zealand in 1995 before moving to Australia in January 2000. From 2003, Brana worked as a vet in New Zealand, returning to Australia every two to three months. From about that time the offender resided with the deceased at 11/113-115 Houston Road, Kingsford (the unit). Brana would stay with the offender and the deceased at the unit when she was in Australia.

Events leading up to 14 November 2013

3. In August 2013 the offender’s mother had a stroke. The offender visited her in Bosnia and Herzegovina, and stayed with her for approximately 5 weeks. The offender found this period stressful. The offender consulted a doctor while he was there and was prescribed an unknown medication. When he returned to Australia the offender informed Brana that he was experiencing a loss of appetite, difficulty sleeping and was suffering from stress.

4. On 9 October 2013, the offender visited his general practitioner Dr Salwa Kyrillos. The doctor noted that the offender was experiencing symptoms of anxiety and depression. The offender was prescribed anti-depressant and anti-anxiety medication and advised to attend counselling. The offender saw Dr Kyrillos a further three times in October and on 31 October 2013 she noted that he had experienced suicidal thoughts.

5. On 2 November 2013, Brana returned to Australia. The offender told Brana that he was still not feeling well; he felt that his skin was tightening, he had pins and needles in his hands and feet and continued to have difficulty sleeping due to anxiety. Brana attended Dr Kyrillos without the offender on 4 November 2013 and told her that the offender’s condition was getting worse. Dr Kyrillos advised Brana to double the offender’s dosage of anti-depressant medication and that it would take about 6 weeks before the medication took full effect. On 5 November 2013 Brana telephoned Dr Kyrillos and told her that the medication was not working because the offender was not sleeping. Dr Kyrillos again recommended counselling, which the offender now agreed to attend. Dr Kyrillos increase the dosage of antidepressant again.

6. On 6 November 2013 the offender and Brana attended Uplift Psychological Services (Uplift), a counselling service recommended by Dr Kyrillos. They were advised that the offender required a referral from his general practitioner. Later that day they saw Dr Kyrillos, who prepared a mental health treatment plan that included a referral to Uplift. Brana told Dr Kyrillos that the offender was having anxiety attacks two or three times a day, where he would clutch his chest and say that he thought he was going to die because he could not breathe.

7. On 8 November 2013 the offender attended an assessment with psychologist Francisco Rivero at Uplift. Mr Rivero noted anxiety and depressive mood, but believed that there was no evidence of an active psychotic disorder or suicidal ideation. Mr Rivero advised the offender that he intended to address his ongoing anxiety symptoms with cognitive behavioural therapy and his depressive mood with interpersonal therapy.

8. Later that day on his return from work, the offender had an anxiety attack. At about 8pm Brana and the deceased accompanied the offender to the Emergency Department at the Prince of Wales Hospital. The offender saw a psychiatric registrar, Dr Alison Crawford. The offender gave a history of a progressive low mood with anxiety and restlessness, decreased appetite resulting in a weight loss of 20 kg in three months, sleep disturbance, decreased concentration and diurnal mood variation. Dr Crawford believed that the offender suffered from major depression with features of melancholia. Dr Crawford lowered the offender’s dosage of anti-anxiety medication and advised him to cease taking that medication within seven days. She prescribed a trial of an antipsychotic medication and increased the dosage of his antidepressant medication.

9. That night, the offender woke up screaming for the first time. It happened three times throughout the night and once the following night. Brana reported this to Dr Kyrillos on 11 November 2013.

10. On Monday 11 November 2013 the deceased started an internship at NTSCORP, a native title representative body. She had recently completed bachelor degrees in psychology and law at Macquarie University.

11. On 12 November 2013 the offender attended Dr Kyrillos. After that appointment he went to work. The offender’s supervisor, Tigran Kirakosyan, noticed that the offender had lost weight, looked exhausted, and was not engaging in conversation as much as usual. The offender informed him that he did not feel well and was told to leave and to see a doctor.

12. On arriving home, the offender talked to Brana about dying. They attended Dr Kyrillos who gave them the telephone number for the Acute Care Team (ACT). Brana called the ACT at around 3pm and the offender spoke to them for about an hour.

13. Brana returned to New Zealand on 13 November 2013, at which point the offender seemed alright. At about 11am the offender exchanged text messages with his eldest daughter, Jovana. This was unusual for him because they had not had any contact since October 2013 and had not seen each other since June 2013. In his text message to her he described himself as “very sick”. At approximately 2pm, the ACT called the offender. The offender said that he had a low mood and did not believe that his medication was working. The ACT advised him to engage a private psychiatrist, to which he seemed agreeable, and assessed him as presenting a low risk of harming himself or others. A further appointment with the ACT was arranged for between 6pm and 9pm on 14 November 2013.

14. Brana telephoned and spoke to the offender and the deceased at about 7pm. Based on those conversations Brana believed everything was fine. The deceased telephoned Brana at about 8pm. Brana thanked the deceased for helping the offender.

The early hours of 14 November 2013

15. Other residents of 113-115 Houston Road and surrounding buildings, reported hearing noises during the night and the early hours of 14 November 2013. Those reports included hearing two screams in quick succession sometime around 10pm on 13 November 2013 and hearing a male and a female talking in an eastern European language between 1am and 2am. The conversation was loud, fast paced and the female did most of the talking.

16. At approximately 3am on 14 November 2013 the deceased phoned Brana and informed her that the offender could not sleep, was panicking and wanted to go for a walk. The deceased wanted to call the ACT, however the offender would not let her. Brana spoke to the offender and asked him to let the deceased call the ACT. The offender agreed and the deceased called the ACT at about 3.15am.

17. The ACT spoke to both the deceased and the offender and it was arranged that the mental health team would call them both the following day.

18. The deceased telephoned Brana and told her what had been spoken about with the ACT and that it was her understanding that the ACT would be coming in the morning.

19. At 5.02am the deceased sent a text message to her boyfriend, Nenad Bogdanic, stating that the offender had an anxiety attack and woke up at 3am. In the message she said that they had spoken to the ACT, who would call them back in the morning.

The morning of 14 November 2013

20. At 7.34am the deceased called her boyfriend. She told him that she had been up between 3am and 5am with her father because he had suffered another anxiety attack. The deceased told her boyfriend that she was going to get ready, put on her make up and go to work.

21. At 8am the deceased sent a text message to her supervisor at NTSCORP, informing her that she may be late and may need to finish early due to the offender’s condition and events of that morning. At 8.06am the supervisor replied to this text message enquiring as to who had sent the previous messages, but received no further replies from the deceased.

22. Between around 8am and 8.10am the residents of unit 7 heard heavy and hurried banging on their front door. The door of the unit, which was directly above unit 7, was heard to open and close twice.

23. At around 8.20am the residents of unit 7 opened their front door in response to the banging and observed the deceased leaning against the brick wall slumped over with her eyes closed. The offender was standing over the deceased, holding her right forearm. There was blood on the wall against which the deceased was slumped, as well as on the door of unit 7. The deceased had blood on her left hand and left side near her hip. The offender had a smear of blood on the right leg of his pants.

24. The residents of unit 7 asked the offender what had happened. The offender did not reply and they called an ambulance. The call was put through to an ambulance operator who provided instructions on how to perform CPR and the offender began to perform chest compressions.

25. At around 8.40am a resident of unit 8 came outside asked if the deceased was the offender’s daughter. The offender nodded but did not speak. Around this time the first paramedic arrived to the scene and instructed the offender to assist him in performing CPR. Further paramedics arrived shortly after and the deceased was hooked up to a defibrillator. A single puncture wound was noted and covered to prevent further blood loss, before paramedics continued to treat the deceased for cardiac arrest.

26. One of the paramedics asked if anyone knew the deceased. The resident of unit 8 informed the paramedic that the patient was the daughter of the offender. The offender was then asked by the paramedic to write down her details and tried to hand a notepad to the offender who would not take it. The offender did not show any emotion and seemed distant and quiet.

27. An ambulance officer informed the offender that the deceased was in a critical condition and asked the last time that he had seen her. The offender replied that he had last seen her at around 7.30am that morning and did not know what had happened.

28. When police officers arrived on the scene Detective Senior Constable Ibrahim accompanied the offender to his unit to obtain the deceased’s identification. Whilst walking to the unit the offender was asked what had happened and the offender responded that he did not know.

29. Detective Ibrahim asked again what had happened and was told a number of times by the offender that he did not know. The offender was asked when was the last time that he had seen his daughter and he informed Detective Ibrahim that he had last seen his daughter at approximately 7.45am. He said that he had found her in the corridor after his door was knocked on by an Asian lady to tell him that his daughter was bleeding, and that he had called an ambulance.

30. Detective Ibrahim spoke to the residents of unit 7 who informed him that they had not knocked on the offender’s door, and that he had been outside their door when they opened it.

31. The offender agreed to attend Maroubra Police Station with Detectives Ibrahim and Kandas to make a statement. As they were leaving the offender was informed by an ambulance officer that the deceased was not going to make it. The offender did not respond.

32. The offender participated in an electronic interview with Detectives Ibrahim and Kandas. During this interview the offender provided inconsistent accounts of the events of that morning and his actions. During the course of the electronic interview, it became apparent to the police officers that there was a gap in the offender’s memory, he appeared despondent, distant and in a dissociative state. The offender denied stabbing the deceased.

33. The offender was arrested and later charged with the murder of the deceased. The offender has been in custody since 14 November 2013.

34. On 15 November 2013 Doctor Istvan Szentmariay performed an autopsy on the deceased which determined that the cause of death was a single stab wound to the back, centred slightly left of the midline. The wound depth was estimated to be 12 cm having an upwards trajectory that was slightly left to right. The wound traversed through the underlying rib, cutting through the lower 70 to 80% of height of the rib. It continued medially and upwards, entering the inferior portion of the thoracic aorta, proceeding through the lumen of the thoracic aorta and exiting out the opposite side. The wound caused significant blood loss and affected the deceased’s respiration. No defensive injuries were identified.

35. Upon admission to custody the offender was held in the high dependency unit within the Mental Health Screening Unit (MHSU) at the Metropolitan Remand and Reception Centre (MRRC) and diagnosed with major depression and psychosis.

Listening Device

36. On 27 December 2013 Brana and Mr Bogdanic visited the offender at the MRRC. The conversation between the three was lawfully recorded pursuant to a listening devices warrant obtained by the police.

37. The offender stated that he did not know why he stabbed the deceased from behind. He stated that he had no excuse. The offender said that he knew the deceased was trying to help him but that she had told him that the tablets he was taking made him stink. The offender said that the deceased knew that he had stabbed her and that he ran after her, but went back to call an ambulance. The offender said it happened in the kitchen and that he used a knife that Brana had bought from an abattoir. He said he did not know why he was holding the knife while talking to the deceased and that something wrong came over him. He said that there had been an argument about his tablets. He later said that the argument was about him going to work, when the deceased had told him to stay home and rest.

Mental state whilst in custody

38. On 17 January 2014 the offender was transferred to the Acute Crisis Unit at Long Bay Hospital because he had developed delirium secondary to high doses of antipsychotic medication. He was transferred to Prince of Wales Hospital. On 29 January 2014 the offender was transferred to the Medical Unit at Long Bay Hospital. On 30 January 2014 he attempted to commit suicide. He was admitted to the Long Bay Hospital Mental Health Unit as a forensic patient. Over the next few months he made several suicide attempts and the Hospital reported minimal improvement in his major depression. During this period he commenced treatment with his treating psychiatrist, Dr Reznik.

39. On 9 April 2014 the offender was transferred to Prince of Wales Hospital at the request of Dr Reznik for assessment by Professor Sachdev, following a finding of a small cyst in his right temporal lobe on an MRI brain scan performed in January.

40. On 10 April 2014 the offender was assessed by Dr Lauren Taylor, a psychiatric registrar. The offender reported to Dr Taylor that his memory was intact from the morning of the offence. He said that the deceased had stayed home to be present when the mental health crisis team was due to visit. He said that he did not want the deceased to stay but wanted her to attend her internship. The offender told Dr Taylor that he felt angry towards his daughter and that a “snap of anger” cause the incident. He said that he had picked up a kitchen knife that was sitting on the bench and stabbed his daughter once in the back.

41. On 5 June 2014 the Mental Health Review Tribunal, at the request of his treating psychiatrist, approved treatment of the offender by way of electroconvulsive therapy (ECT). ECT was not administered and the offender’s mental health slowly improved. He was discharged from the Mental Health Unit at Long Bay Hospital and transferred back to MRRC on 3 December 2014.

Psychiatric Evidence

42. The offender tendered the following psychiatric reports:

1. report of Dr Scott Clark, (Justice Health) dated 10 January 2014;

2. report of Dr Richard Furst dated 17 September 2014;

3. report of Dr Richard Furst dated 12 November 2015.

4. The Crown tendered following psychiatric reports:

5. report of Dr Olav Nielssen dated 6 December 2014;

6. report of Dr Olav Nielssen dated 3 December 2015.

Report of Dr Clark

43. Dr Clark’s report was prepared at the request of the Local Court. He noted a history of symptoms consistent with the agreed facts and I will not repeat those matters. He obtained a history of an earlier episode of depression in 1995 at a time when the offender was considering the move to New Zealand with his family. The offender told Dr Clark that he was prescribed medication and felt better about 3 to 6 months after beginning to live in New Zealand.

44. Dr Clark noted in his review of the offender’s medical record that on a number of occasions when he was in custody in November 2013 he appeared to be disorganised, vague, confused, despondent and disoriented.

45. Dr Clark diagnosed the offender as suffering from major depression with psychotic features. He recommended that the offender continue to receive treatment for depression under the supervision of a psychiatrist and with regular review by mental health clinicians. He opined that the offender’s condition should be regularly monitored, including his mental state progress and side-effects of the medication. He recommended that the offender undergo further diagnostic testing including an MRI brain scan to exclude any organic cause of his mental condition.

43. Dr Clarke opined that the offender was at risk of self harm, that he expressed guilt and made indirect references to his death, although he did not have any intention to harm himself.

Reports of Dr Furst

47. The report of Dr Furst dated 17 September 2014 (the first report) was prepared at the request of the offender’s solicitor. Dr Furst was asked to assess if the offender was fit to plead, if he had a mental illness defence and if he was substantially impaired by an abnormality of mind arising from an underlying condition as provided for in section 23A Crimes Act 1900.

48. Dr Furst obtained a history of symptoms consistent with the agreed facts and I will not repeat those matters. The offender told Dr Furst that the depression he had suffered in 1995 at age 39 made him feel sad and suicidal and that he was treated in a psychiatric hospital.

49. The offender told Dr Furst that he was at a loss to explain his actions regarding the offence. He remembered taking a knife from the kitchen but did not know why he had done so. He remembered his daughter talking to the mental health crisis team on the night prior to her death and that they intended to come to the unit at 8.30am. The offender could not explain why he stabbed his daughter. He recalled the image of stabbing her. He could not explain why he cleaned the knife. He could not explain why he told the police that he did not commit the offence. The offender told Dr Furst that he was very upset and remorseful about the death of his daughter.

50. In his first report, Dr Furst carefully reviewed the electronic interview, the statements of the witnesses contained in the police brief of evidence and the offender’s medical records.

51. Dr Furst diagnosed the offender with a major depressive disorder (severe) with melancholic features and psychotic features. Dr Furst opined that the offender was fit to plead and give instructions. Dr Furst opined that the offender had the mental illness defence available to him because in Dr Furst’s opinion his actions and stabbing his daughter were most likely the product of severe depression and psychometric agitation he was experiencing with there being no logical reason or motive for his actions.

52. Dr Furst believed that the offender was probably suffering from an abnormality of mind at the time of the offence by virtue of his severe melancholic depression with psychotic features, such that his judgement was impaired. In Dr Furst’s opinion the offender may well have been in some type of dissociative state by virtue of his severe depression. This opinion was based on his appearance as described by witnesses immediately after the stabbing and by reference to the disturbance demonstrated in the electronic interview. In Dr Furst’s view the offender’s severe depression probably made it difficult for him to judge whether his actions were right or wrong and difficult for him to control himself and thereby the defence of substantial impairment by abnormality of mind was open to him.

53. At the time of his first report, Dr Furst opined that the offender remained depressed and was at a high risk of suicide. At that time his depression had not responded well to multiple medications and he believed that a course of ECT was indicated.

54. The report of Dr Furst dated 12 November 2015 (the second report) made reference to Dr Nielssen’s opinion, noted that the offender had pleaded guilty to manslaughter on the basis of substantial impairment and the offender’s more recent medical records.

55. Dr Furst obtained some further history, including that his depression in 1995 had been treated with medication for a period of about 12 months. The offender reported some further depressive episodes of less severity whilst living in New Zealand and working for Telecom that would last about one week and resolve without formal treatment.

56. The offender accepted his guilt in relation to the manslaughter of his daughter both legally and morally and became visibly distressed during the interview finding it difficult to come to terms with his actions. The offender said to Dr Furst, “I still feel very guilty. It is very hard. Every day, I see the images of her. Thinking ’what have I done?’, ‘Why have I done this?’ It is very hard for me. I still don’t understand.” He could still not explain his actions. The offender told Dr Furst, “I took the knife and did that for no good reason.”

57. Dr Furst opined that the offender was clearly less depressed than he had been 12 months ago, however he remained sad and easily moved to tears when discussing the death of his daughter at his hands. Dr Furst did not identify any signs of psychosis and the offender was not suicidal. Dr Furst administered the Beck Depression Inventory (BD-II). The offender had a score that placed him in the moderate – severe range for clinical depression.

58. In his second report, Dr Furst confirmed the opinions expressed in the first report as to the mental illness defence and the substantial impairment defence.

59. Dr Furst opined that the offender had a positive prognosis based on his employment history, his lack of criminal convictions or history of violence, his lack of abuse of alcohol or illicit drugs, his remorse and contrition and his engagement with psychiatric treatment since he had been in custody. Dr Furst believed that his prognosis would be assisted by ongoing psychiatric treatment and counselling. Dr Furst opined that the offender’s risk of future offending is low based on the absence of any criminal history and the unique circumstances of the offence, especially if he engaged in future psychiatric treatment or case management in the community. Dr Furst believed that his expressions of guilt and remorse were positive factors meaning that he has a high chance of complying with the proposed treatment plan and good prospects of being successfully rehabilitated, notwithstanding the seriousness of the offence and the severity of his depressive illness.

60. Dr Furst recommended that his treatment in custody include:

• remaining under the care of psychiatrists and mental health nurses to monitor his mental state, suicide risk and to manage his depression;

• ongoing treatment with a combination of antidepressant and antipsychotic medication;

• psycho education regarding his condition and future treatment needs;

• counselling to help him cope with his symptoms of depression, anxiety, guilt and grief; and

• the provision of work and vocational training options.

61. Dr Furst recommended that when the offender was eligible for parole that he be the subject of the following treatment plan:

• he be placed under the care of his general practitioner pursuant to a mental health care plan and attend appointments with his general practitioner at a frequency as directed by his general practitioner (being no less than monthly to start with);

• he be referred to his local community mental health team with a view to being case managed;

• he be placed under the care of Dr Reznik, psychiatrist at Bondi Junction, or such other psychiatrist nominated by Dr Reznik, and that he engage in ongoing psychotherapy and/or counselling with Dr Reznik or the nominated psychiatrist;

• he take psychotropic medication as described by Dr Reznik and/or his general practitioner;

• he undertake counselling with a clinical psychologist;

• he engage with rehabilitation, vocational and/or occupational counselling.

Reports of Dr Nielssen

62. The report of Dr Nielssen dated 6 December 2014, was prepared in response to the first report of Dr Furst.

63. The offender gave a history to Dr Nielssen that was largely consistent with the agreed facts and I will not repeat those matters. The offender told Dr Nielssen that his depression in 1995 lasted for 3 to 4 months and that he was admitted to a psychiatric hospital and had medication in tablet form as well as medication administered by injection. The offender did not remember experiencing any symptoms of psychosis on that occasion.

64. The offender told Dr Nielssen that he did not know how he got the knife. He stated that his relationship with his daughter was excellent, that they had never been in dispute and he had never hit or punished her in any way. He could not explain why he stabbed his daughter. He did not believe that he was in danger or that his daughter wanted to harm him in any way. He did not report hallucinated voices warning him or directing his behaviour. He said that he had heard voices telling him to kill himself soon after he was taken into custody. The offender said that he remembered stabbing his daughter, but did not remember cleaning the knife. He said that he did not remember any exchange of words.

65. Dr Nielssen carefully examined the content of the electronic interview, the witness statements and the offender’s medical records.

66. Dr Nielssen diagnosed the offender as suffering from major depressive illness with psychotic features. Dr Nielssen opined that the offender’s account of his illness leading up to the offence was corroborated by the contemporaneous documents and aspects of his presentation at the time of the offence and at the time of Dr Nielssen’s interview with him. Dr Nielssen opined that in the weeks before the offence the offender was suffering from a severe form of depression with agitation, prominent anxiety symptoms and nihilistic delusional beliefs.

67. Dr Nielssen concurred with the opinion of Dr Furst that the offender was fit to plead and had the defences of mental illness and substantial impairment open to him.

68. Dr Nielssen believed, on the basis of the offender’s account of stabbing his daughter in the recorded conversation with Brana and Mr Bogdanic, that the offender was probably aware of the physical nature and quality of his actions and of picking up the knife and stabbing his daughter once in the back. However, he believed that his abnormal state of mind deprived him of the ability to recognise at that moment that his actions in doing so were wrong, and also deprived him of the ability to exercise self-control and consider the potential consequences of doing so.

69. In his report of 3 December 2015, Dr Nielssen was asked to comment on the more recent information available, without conducting a further interview with the offender.

70. Dr Nielssen concurred with Dr Furst’s opinion relating to the offender’s diagnosis, prognosis and risk of committing a similar offence, regardless of the outcome in these proceedings. Dr Nielssen opined that the main concern would be of a further episode of severe depression, and the risk of suicide, rather than any foreseeable danger to other members of the community.

71. Dr Nielsen concurred with the treatment plan recommended by Dr Furst to be implemented when the offender was eligible to be released on parole.

Consideration

General principles relating to sentencing for the offence of Manslaughter

72. Since the offence of manslaughter covers a wide variety of circumstances, calling for a w wide variety of penal consequences, determining an appropriate sentence for manslaughter is “notoriously difficult”: R v Green [1999] NSWCCA 97 at [24]. Although some assistance may be received from a consideration of facts of other cases and the sentences imposed therein, those cases do not determine an inflexible range: Green at [24].

73. Spigelman CJ said in R v Forbes (2005) 160 A Crim R 1 at [133]–[134]:

manslaughter is almost unique in its protean character as an offence. (See in particular the observations of Gleeson CJ in R v Blacklidge). In its objective gravity it may vary, as has been pointed out, from a joke gone wrong to facts just short of murder.

It is also relevant to recognise that, although manslaughters can be characterised in different ways, particularly in the various contexts which may reduce what would otherwise be a murder to manslaughter, the degree of variation within any such category is generally also over a wide range. Matters of fact and degree arise in all categories of manslaughter. [Citations omitted].

74. In R v Blacklidge (unreported, 12 December 1995, NSWCCA), Gleeson CJ said:

It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.

At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. [Citations omitted.]

75. 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 R 372 at [62]. In that case it was also said at [65]:

In many cases where an offender is convicted of manslaughter there will be exculpatory matters and personal circumstances that can lead the court to significantly ameliorate the sentence which might otherwise be imposed. However, as this Court pointed out in R v Troja (unreported, CCA 16 July 1991) it is important for the court to ensure that the subjective circumstances of an individual offender do not divert the court from imposing a sentence which adequately reflects the part which the law must play in upholding the protection of human life and in punishing those who take it.

76. It is very difficult to identify any pattern of sentencing for manslaughter: R v Hill (1981) 3 A Crim R 397 at 402. Limited assistance is to be derived from sentences in other cases: Taber v R (2007) 170 A Crim 427 at [102].

77. As in the case of manslaughter by provocation, what is ordinarily involved in manslaughter by substantial impairment is a conclusion that the taking of human life was the consequence of a deliberate and voluntary act, performed with intent to kill or cause grievous bodily harm, or with reckless indifference to human life: R v Blacklidge. The abnormality of mind diminishes, but does not negate, the offender’s responsibility: Blacklidge; R v Dawes [2004] NSWCCA 363 at [34] and also R v Low (1991) 57 A Crim R 8 at 17. As stated in Low, “it is quite wrong to take the view that merely because there is an element of diminished responsibility, which substantially impairs a person’s judgement, that that is the end of the matter and a light sentence must inevitably follow”: at 18.

78. It is necessary for a sentencing judge to consider the degree to which an offender’s mental condition was impaired beyond that required to make out the partial defence: R v Keceski (unreported, 10 August 1993, NSWCCA). While an impairment of greater degree may tend towards a further diminution in culpability, it may also raise the issue of future dangerousness. As stated in Veen v The Queen [No 2] (1988) 164 CLR 465 at 477, where the offender’s sentence of life imprisonment for manslaughter (the maximum penalty at the time) was upheld by the High Court at 476–477:

There is an anomaly, however, in the way in which the mental abnormality which would make an offender a danger if he were at large is regarded when it reduces the crime of murder to manslaughter pursuant to s 23A. Prima facie, a mental abnormality which exonerates an offender from liability to conviction for a more serious offence is regarded as a mitigating circumstance affecting the appropriate level of punishment … However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment … And so a mental abnormality which makes an offender a danger to society when he is at large but which diminished 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 balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality.

Objective seriousness of the offence

79. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v R (No 2) (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton (2006) 66 NSWLR 566 at [15].

80. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].

81. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No 5) [2009] NSWSC 432 at [61].

82. There is no evidence of any conflict between the offender and the deceased prior to the offence and they had always enjoyed a close and loving relationship. The deceased was present at the time of the offence out of concern for her father’s welfare and to help him through the symptoms he was experiencing. There is some evidence to suggest that the offender was angry with the deceased at the time of committing the offence, but that anger was not rational or justified. There was no evidence of any provocative conduct or wrongdoing on the part of the deceased.

83. The offender inflicted a single stab wound to the back of the deceased. I am satisfied beyond reasonable doubt by reference to the findings on autopsy and the lack of defensive wounds, that the offender stabbed the deceased without warning from behind with significant force.

84. There is no direct evidence as to the offender’s intention at the time of stabbing the deceased. I am entitled to infer his intention from the circumstances in which the death occurred and the conduct of the offender before, at the time of or after he stabbed the deceased.

85. I find that in the early hours of 14 November 2013 the offender was arguing with the deceased about contacting the ACT and what he should do to alleviate the distress caused by his symptoms. The things that the offender said to the deceased caused her considerable concern because she detected a significant deterioration of the deceased’s mental state. This is consistent with the evidence of neighbours overhearing the tone of and the volume of the conversation between them. The deceased communicated her concerns to the ACT in a way that caused the relevant officer from the ACT to conclude that she was “catastrophizing”, but also to advise her to contact ‘000’ if matters got worse. The offender and the deceased went back to bed between about 5am and 7.30am.

86. The deceased intended to get ready to go to work. The deceased and the offender came together in the kitchen. There was further argument about whether or not the offender should go to work and some discussion about the offender’s medication. The offender became angry at the deceased and took the knife that was on the kitchen bench and stabbed the deceased once in the back. He pursued her, but did not attack her again. She left the unit and made her way to the stair well to try and get the attention of the residents of unit 7 by banging on the door. The offender approached her and was overcome by the effect of his actions.

79. The offender intended by stabbing the deceased to end the argument with her by causing her serious injury. On the basis of the evidence, I am not satisfied beyond reasonable doubt that the offender intended to kill the deceased when he stabbed her. I am satisfied beyond reasonable doubt that the offender intended to cause the deceased grievous bodily harm to bring an end to the conflict between them.

80. The offence involves the unlawful taking of human life and the appropriate sentence must reflect the gravity of that objective circumstance.

Findings base based on the psychiatric evidence

89. Based on the psychiatric evidence, I make the following findings.

90. At the time of the offence the offender was suffering from severe melancholic depression with psychotic features, such that his judgement was impaired. He was probably in a dissociative state by virtue of his severe depression.

91. The offender acted with knowledge of what he was doing at the time when he stabbed the deceased but his ability to comprehend the consequences or to control his actions was significantly reduced.

92. The offender does not pose a risk to the community on his release on parole, provided that he continues to accept treatment and monitoring of his mental condition. The greater risk is that if his mental condition is not controlled that he will cause himself harm.

93. There was a causal connection between the offender’s mental state and the offence.

94. Whilst I accept the description of the offender’s mental condition by Dr Furst and Dr Nielsen as severe, I am not satisfied that he was impaired to an extent that was significantly beyond that required to make out the partial defence provided for by section 23A Crimes Act 1900.

Deterrence

95. General deterrence may be attributed less weight in cases where the offender suffers from mental condition because such an offender is not an appropriate person to be made an example of: Muldrock v R (2011) 244 CLR 120 at [53]-[54]. The authorities do not mandate an entire disregard of general or specific deterrence by the sentencing judge. The extent of the reduction depends on the circumstances of the case: Palijan v R [2010] NSWCCA 142 at [27], R v Scognamiglio (1991) 56 A Crim R 81, R v Wright (1997) 93 A Crim R 48 and R v Lawrence [2005] NSWCCA 91.

96. The factors that are relevant to the assessment include the nature and extent of the mental condition suffered, whether the offender acted with knowledge of what they were doing and the gravity of their actions and whether the community require protection from the offender by reason of the mental condition suffered.

97. The existence of a causal connection between the offending behaviour and the mental condition decreases the need for general deterrence: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177].

98. Based on my findings in relation to the psychiatric evidence, this is an appropriate case for a reduction in the weight afforded to general deterrence in the sentencing process.

99. Specific deterrence is also of less weight in this case for the following reasons. First, the offender is a low risk of re-offending. Second, the offender has engaged with the extensive treatment he has received in custody and has responded well to treatment. Third, the offence was committed at a time when the symptoms of the offender’s mental condition were acute causing an isolated loss of control, albeit catastrophic.

Aggravating factors

100. There are no relevant aggravating factors prescribed by section 21A(2) Crimes (Sentencing Procedure) Act 1999.

Mitigating factors.

101. The offender has no prior convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. At the time of the offence the offender was 57 years of age.

102. The offender was a person of good character: section 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. At the time of the offence the offender had no criminal history and was gainfully employed.

103. The offender is unlikely to reoffend: section 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. Both Dr Furst and Dr Nielssen are of the opinion, for the reasons I have already referred to, that the offender is unlikely to reoffend and poses no significant danger to the community.

104. The offender has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. Dr Furst and Dr Nielssen agree that the offender has a positive prognosis based on his employment history, lack of criminal convictions or history of violence, his remorse and contrition and his engagement with psychiatric treatment since he has been in custody. It will be necessary for the offender to engage in significant psychiatric treatment in the future to ensure that he has good prospects of rehabilitation. Based on the psychiatric evidence I am satisfied on the balance of probabilities that the offender is committed to receiving psychiatric treatment in the future and thereby has good prospects of rehabilitation.

105. The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The psychiatric reports each noted significant expressions of remorse and contrition on the part of the offender. Those expressions have also included an acceptance of responsibility for his offending conduct. The offender has also pleaded guilty to the offence when he had the defence of mental illness available to him. I am satisfied on the balance of probabilities that the offender has demonstrated genuine contrition and remorse.

106. The offender was not fully aware of the consequences of his actions because of his mental condition: section 21A(3)(j) Crimes (Sentencing Procedure) Act 1999. I have already extensively referred to the matters relevant to the offender’s mental condition and I will not repeat them. For the reasons already expressed the offender’s mental condition has reduced his moral culpability and thereby general deterrence, retribution and denunciation have less weight in the sentencing exercise: De La Rosa at [177].

107. The Crown has conceded that the offender entered an early plea of guilty: sections 21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999. The Crown has also conceded that the appropriate discount for the plea of guilty is 25%. Having regard to the principles laid down in R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32], I find that it is appropriate to allow a 25% discount for the plea of guilty in this case.

Comparable Cases

108. The parties each provided a summary of a number of other cases involving the offence of manslaughter. I have considered the reports of those cases and the pattern of sentencing disclosed by them, noting the limitations of that exercise set out in the cases such as Hili v The Queen (2010) 242 CLR 520 and Barbaro v The Queen (2014) 253 CLR 58.

Sentence

109. I have considered section 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate.

110. The appropriate term of imprisonment is 9 years, which will be discounted by 25%.

111. I find that there are special circumstances by reference to the offender’s age, his need for psychiatric treatment and monitoring, that it is his first time in custody and that his mental condition will make his incarceration more difficult.

112. Taking into account all of those matters, the offender is convicted. He is sentenced to a term of imprisonment of 6 years and 9 months with a non-parole period of 4 years and 9 months to date from 14 November 2013.

113. The offender will be eligible to be released on parole on 13 August 2018.

114. I am satisfied that the matters described in the treatment plan set out in Dr Furst’s second report (with which Dr Nielssen agreed) are appropriate. I direct that the reports of Dr Furst and Dr Nielssen referred to in these remarks on sentence be provided to the Department of Corrective Services for inclusion in the offender’s medical records.

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Decision last updated: 17 December 2015