Regina v Gagalowicz

[2005] NSWSC 675

CITATION:	REGINA v GAGALOWICZ [2005] NSWSC 675
HEARING DATE(S):	04/04/05, 05/04/05, 06/04/05, 07/04/05, 08/04/05, 10/06/05
JUDGMENT DATE :	8 July 2005
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
DECISION:	The overall sentence imposed is one of eight years imprisonment, comprising a non-parole period of four years to commence on 19 April 2003 and expire on 18 April 2007 and the balance of the term commencing 19 April 2007 and expiring 18 April 2011.

CATCHWORDS:

Sentence - manslaughter - substantial impairment - drug induced psychosis - victim impact statements - that victim was drug dealer irrelevant - significance of youghfulness of offender

LEGISLATION CITED:

Crimes Act 1900 s23A

CASES CITED:

Hearne 124 A Crim R at 438
R v AO (2003) 138 A Crim R 189
Veen v The Queen (No 2) (1988) 164 CLR 465

PARTIES:

Regina

v

Matthew GAGALOWICZ

FILE NUMBER(S):

SC 2004/8

COUNSEL:

Mr Paul Conlon SC (Crown)
Mr David Campbell SC (Offender)

SOLICITORS:

S C Kavanagh (Crown)
Mr M Manwaring (Campbell Paton & Taylor) Offender

LOWER COURT JURISDICTION:

OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

ADAMS J

FRIDAY 8 JULY 2005

2004/8 REGINA v MATTHEW GAGALOWICZ

JUDGMENT

1 HIS HONOUR: In mid-February 2003, Ricky Mark Smith was killed by Matthew Gagalowicz. The offender was charged with murder and, when arraigned on 4 April 2005, pleaded not guilty to that charge but guilty of manslaughter. On 8 April 2005 the jury acquitted him of the murder of Mr Smith and convicted him of manslaughter. As is evident from the plea, the offender did not dispute – indeed, he never disputed – that he killed the deceased. The questions of substance in the trial were whether the Crown had established that, when the offender killed the deceased, he intended either to kill him or cause him grievous bodily harm or, these intentions having been proved, whether the offender established that, at the time he killed the deceased, his capacity to understand events or judge whether his actions were right or wrong or to control himself was impaired by an abnormality of mind arising from an underlying condition, which impairment was so substantial as to warrant reducing his liability for murder to manslaughter.

2 Having regard to the jury’s verdict it is necessary for me to determine whether the offender should be sentenced upon the basis that, at the relevant time, he lacked the relevant intent and should be sentenced upon the basis that his killing of the deceased was caused by an unlawful and dangerous act or, on the other hand, whether he intended to cause death or grievous bodily harm but the impairment of his mind was so substantial as to warrant his conviction for manslaughter rather than murder. I will deal with this question in due course.

The cause of death

3 The principal evidence concerning the cause of the deceased’s death was given by Dr Duflou, the Chief Forensic Pathologist in the Division of Forensic Medicine. Dr Duflou conducted the post mortem examination. It was apparent that the deceased had suffered extensive fatal head injuries with multiple lacerations of the scalp and comminuted fractures of the skull. On external examination of the head, there were twelve injuries to the scalp and face consistent with the infliction of twelve blows. The number of blows may have been fewer but, quite possibly there were more. I am inclined to think on the evidence as a whole that the number of blows was significantly greater than twelve, though I do not think that much turns on this. There was very extensive fracturing of the head, not only involving the skull but also the facial structures. It was not possible for the doctor to estimate the number of blows required to cause these injuries. Dr Duflou said that it would not surprise him if they numbered ten or so but “it certainly could be well in excess of that”. There was a massive concave deformation on the left side of the skull which required very considerable force to cause. Dr Duflou said that force of this degree was “well in excess of what I tend to usually see”. It is clear that the cause of death was multiple blows to the victim’s head.

4 The deceased’s body had also been dismembered. The head had been decapitated, both arms had been removed at the level of the shoulders and both of the lower legs had been removed at the level of the knees. Dr Duflou identified numerous tool marks in the form of cuts and saw marks on various parts of the remains. There was also a complex area of wounding on the left thigh which was nearly circumferential but had not resulted in complete dismemberment. Dr Duflou thought that the tool marks he observed were made in a sawing motion, most likely with a knife although he could not be certain that a saw was not used. It is not controversial that the blows which caused the deceased’s death were inflicted by the offender with a baseball bat. Toxicological examination established that the deceased had ingested a significant quantity of methylamphetamine prior to death.

5 The body parts of the deceased were found by police on 16 April 2003 buried in the backyard of premises in Farrell Road, Bulli. They had been placed in plastics bags which were themselves placed inside a suitcase, a pillowcase and a doona. The deceased’s personal effects were also found.

The occupants of the house

6 The Farrell Road premises, at the material times, were occupied by the offender (then three months or so short of his nineteenth birthday), David Farrington (then something over twenty-one) and two young women (A and B, whom I will not identify as they were then only seventeen years of age). Another person had moved into the premises with this group but was there for only a short time and moved out before the relevant events. The group moved into the house about October 2002. The offender met David and his girlfriend A at Kedesh House whilst undertaking a residential drug rehabilitation program of about eight weeks duration. B was the offender’s girlfriend.

7 Although all four young people had been drug users for some time, they were drug free when they came together to the south coast. Unfortunately, this situation lasted no more than a week or so and each recommenced his or her drug habit. They used a variety of drugs but mainly methylamphetamine at this time. They purchased these drugs every day or every second day from the deceased, whom they contacted by mobile telephone. The drugs were paid for with money received by the occupants by way of Centrelink allowance. This money was usually given to the offender who paid it to the deceased when he delivered the drugs to the house.

The crucial events

8 The deceased had been supplying drugs for the use of members of the household for some weeks. As he recommenced his use of amphetamines by way of injection, the offender started to experience episodic psychotic symptoms, including paranoia, auditory delusions and visual distortions. These symptoms became more intense as time went on. On the day of the offence the offender (as well as one or more of the others in the house, as I understand it) had not used drugs for some days because they had run out of money. The offender was starting to feel physically unwell, describing it as “coming down pretty hard”. He telephoned the deceased and asked him to come, falsely telling him that he had money to pay for the drugs. When the deceased discovered that the offender wanted credit, he became angry stating that his time had been wasted. The offender said that he felt unwell, frustrated and “the blood pounding in my head”. As he argued with the deceased, he picked up a baseball bat and told him to leave the drugs and go. He said that the deceased suddenly lunged forward and tried to grab the baseball bat, there was a struggle and during the course of this the offender hit the deceased on the head. He only recalled two blows. He next recalled standing in the kitchen staring down at the deceased’s body. The offender described his feelings and memories of this time as being like in a dream.

9 The offender said that he went to the bedroom occupied by A and David and asked David to come out. David came out and saw the deceased. He asked where the drugs were. They were on the floor near the body and both men took them into another room and injected straight away. The offender is unclear about this but A also took drugs at this time. According to the offender, he and David both moved the body to the bathroom. He said that they discussed what they were going to do and decided to get rid of the body, equipping themselves with knives and gloves for this purpose. The offender claimed that David made the first cut to the leg but then could not continue, saying that he felt ill. The offender then carried on with the dismemberment of the deceased. When this had been done, he walked out of the bathroom and found A who had woken in the meantime and told her what had happened. He told her and David to go down to the beach. When they went off to the beach, the offender cleaned up the kitchen and bathroom and put the body parts in a suitcase. He used more drugs at this time. He then telephoned David and the group came back from the beach and talked about what had happened. The offender said that they must dispose of the body and B telephoned friends who had cars in an unsuccessful attempt to borrow one.

10 B gave evidence to the effect that, on the day upon which the deceased was killed, she woke up late in the afternoon or early evening to go to the bathroom upon the door of which was a sign to the effect that it should not be entered. The offender was in the back room of the house and told her that she could not go into the bathroom. When she asked him why he gave her a shot of speed and then told her that he had “killed Rick” and that he had put his body in the bathroom. She said that the offender suggested that she should go down to the beach, where David and A were. B did so and, following a conversation at the beach, the three of them returned to the house about forty-five minutes or so later. When they returned to the house, there was further conversation involving the offender who told them that they should not talk about what had happened, that he would take full responsibility for what had occurred and that B should get herself an alibi because she had been at the house all day. B said that the offender then left the group in the lounge room and, she thought, returned to the bathroom. The three of them remained in the lounge room, not saying anything and eventually commenced playing cards. They did not see the accused for several hours, when he returned to the lounge room.

11 David and A left the house at sometime during that evening but B stayed. She said that on the following day or, possibly, days the offender had decided that he was going to put the body in the backyard and went down to the shops to purchase topsoil, lime, a trowel and some seeds, saying that he was going to bury the body and plant a vegetable patch there. B said that the offender’s behaviour in the days following the killing was erratic. She said that he did not sleep, he only ate if he had to, and he was doing “weird” things, such as writing all over the bathroom wall with a whiteboard marker statements like “I am God” and other “unreadable stuff”. He also sprayed shaving cream all over the bathroom. He continued to take amphetamines. At one point B noticed that there were the beginnings of a hole being dug in the backyard but she did not see it completed. She also noticed a strange smell in the house which the offender said was coming from the laundry and that she was not to mention it again. Later on he told her that the smell was gone and that he had put it in the backyard, letting off a “cockroach bomb” in the laundry to get rid of the smell.

12 Sometime later, B said she noticed that the hole had been filled in and that garbage and sticks and lawn clippings were placed over it at some stage by the offender and David. At one point David and A returned to the house but B did not recall how long they had been away.

13 It is clear that B’s memory of the relevant period is vague, incomplete and disorganised in a number of respects, almost certainly a result both of the chaotic and shocking nature of some of the matters to which she has referred combined with her heavy use of drugs at the time. She said that as well as her own general well-being deteriorating she noticed this occurring to the others in the house, including the offender in particular, as he was not eating properly and was suffering from the effects of his diabetes (a matter to which I will return).

14 David was about twenty-one at the relevant time. He said that the group moved into the house in Farrell Road, Bulli towards the end of January 2003. He confirmed the arrangements that the group made about the purchase of amphetamines from the deceased. On the afternoon of the killing, he said that he and A were in the back bedroom of the house sleeping and that he woke up when he heard a thud and “sort of a high pitched scream and then I just heard some more thudding, I’m not sure how long it went on for”.

15 Sometime afterwards – perhaps five or ten minutes later – the offender came into the bedroom and told them that he had killed the deceased and that “if we said anything we’d be fucked up”. David said that he had heard a drawer being opened and a plastic bag being taken out of it and then something being dragged along the hallway towards the bathroom. When the offender came into the bedroom to tell them what he had done, they were quite terrified and thought that he was psychotic. There had been earlier paranoid behaviour but no significance had been given to it because David thought that it was normal when people took drugs. David was in a panic and was worried about what the offender might do to him and A. He had never seen him like this before and was frightened that he might well do something to them if he said anything. He said he heard the sawing noise coming from the bathroom. He said that he went into the kitchen sometime afterwards and noticed a lot of blood on the floor but there was no body there at the time. He and A went into the lounge room. Whilst they were there he said he heard “some sort of sawing and I remember Matthew coming into the lounge room, I think he came into the lounge room and I said I didn’t like it, you know, I wanted to go out, and he gave me and [A] his phone so he could get in contact with us and me and [A] went then to the beach and sat at the headland”. It seems that this was late in the afternoon.

16 About dusk B rang them and came down the beach and spoke to them. He thought it was about an hour and a half later that they returned to the house. He noticed that the bathroom door was still shut, there was a suitcase and a box in the kitchen and kitty litter had been placed in the floor in a pile where he had earlier seen the blood. He had seen the suitcase under the house on an earlier occasion. When the three others returned from the beach to the house they sat in the lounge room. David said that he thought the offender was cleaning up the kitchen. David said that he and A had returned to the back room at some stage during the night and that the offender drew a diagram on a notepad to show them how he had dismembered the deceased’s body and told them that “he’d chopped his arms off and his head and his legs”. When David protested that he did not want to be any part of it, he said the offender responded that he should not worry about that as “it’s his responsibility”. David thought that the offender drew the diagram without having been asked any question about what he had done.

17 I interpolate here that, as is obvious, David and the offender have given differing and conflicting accounts of what happened after the deceased was killed. I do not intend to analyse their evidence closely. It is unnecessary for present purposes. However, I should state that I regard the offender’s account as the more likely to be accurate. This opinion is derived both from my view of him as a witness, because David has an obvious motive for minimising his role whilst it is difficult to see that the offender has anything to gain from implicating him and the incoherence in some significant respects of David’s account.

The aftermath

18 According to A, the relationship between B and the offender deteriorated and, eventually the two of them left the premises to enter a detoxification clinic in Canberra, booked by the offender. David and A stayed at the house. Although the program was due to last seven days, the offender and B left after three days. The pair stayed with his parents for a short time and then B decided to return to her parents’ home in Sydney. It was now early March. The offender accompanied her for two or three days and then left. In mid-April B disclosed to her parents what had happened at the house and then reported the matter to police.

19 David said in effect that his memory about what happened over the ensuing few days was very uncertain. He recalled that he and A left the house to return to his parents’ home shortly after the night in question and that he had not gone into the bathroom at the house for several days. He said that he stayed at his parents’ home for three to five days when he and A returned to the Farrell Road premises. He said that when he returned he noticed an area in the backyard with no grass on it, indicating that it had been dug up and sometime later he put grass clippings on the area and, to block a hole in the fence where the neighbours’ dog was getting in, he placed broken doors and other rubbish next to the fence and over the dirt. This was also done in part because he thought there was going to be an inspection from the Housing Department. He and A were still at the house when the offender and B went to Canberra to Arcadia House.

20 The offender said that, about two or three days after the killing, he and, as I understand it, David dug up the yard, taking several days to do so until the hole was ready. The offender put the body in the hole and covered it. He said that David and A (who had in the meantime left the house because, he said, they had said they did not want to be there whilst this was happening) then returned to the house.

21 The offender said, and I accept, that the psychotic symptoms persisted until sometime after he had returned to the detoxification centre in Canberra, as I have already described. Of course, during much of this time he had continued to use the amphetamines which, I infer, had been brought to the house by the deceased. From time to time in the ensuing weeks, even after he left the detoxification centre, he suffered from psychotic symptoms and, indeed, was taken to hospital on the day of his arrest.

The offender’s mental state

22 I do not intend to rehearse the medical evidence in the case. It is sufficient for present purposes to say that I have no doubt that the offender, at the time he killed the deceased, was suffering from a psychotic state that substantially impaired his capacity to understand events, his judgment about the rightness or wrongness of what he was doing and his ability to control himself. I also consider that this impairment arose from an abnormality of mind caused by an underlying condition and was so substantial as to warrant liability for murder being reduced to manslaughter as provided by s23A of the Crimes Act 1900.

23 I have stated my conclusion in this way since the accused’s liability to be convicted for murder was left to the jury in terms that required consideration of the issue whether the Crown had established beyond reasonable doubt the requisite intention to cause death or grievous bodily harm and, if they were so satisfied, whether the offender had established more probably than not, the defence provided by s23A. Of course, if the jury were not satisfied beyond reasonable doubt that the Crown had established the requisite intention, the appropriate verdict was manslaughter as also would be the verdict if, on the other hand, they were satisfied that the s23A defence had been made out. It did not seem to me appropriate to enquire of the jury which of these two possible paths had been taken to the verdict which was pronounced. I will return to this matter in due course.

24 This matter is relevant for other reasons but I should mention at this point that the offender suffers from insulin dependent diabetes. The effects of inappropriate control of blood sugars vary greatly depending on the particular individual and the nature of the diet he or she is taking. There is no doubt that in at least the two or three weeks before the killing, the offender’s lifestyle was extremely chaotic and that his eating pattern was also chaotic. Since insulin needed to be taken after meals this affected also the regularity with which he took his insulin. It is reasonable to infer that this lack of insulin control contributed to some degree, not likely to be substantial but nevertheless not insignificant, to the offender’s confused state of mind at the crucial time. Having regard to the time at which the offender last took amphetamine before he killed the deceased, I am satisfied that the offender was not intoxicated at the time he did so.

25 It is obvious that the attack by the offender on the deceased was a frenzied, uncontrolled attack of extreme violence. The offender says – and I accept – that, aside from the initial two blows he does not recall the rest of this attack. I agree with Dr Westmore that both the character of this attack and the subsequent dismemberment are acts of such extraordinary violence that, although in one sense they are rationally connected to the intentional killing or causing of grievous bodily harm to the deceased and destroying the evidence, they in fact signify the effects of a severe mental illness.

26 I will deal shortly with the offender’s previous psychotic episodes triggered by his use of amphetamines. At this point, however, I should state my conclusion that there was no reason for him to suppose that his ingestion of amphetamines would lead to any significant act of violence that might be directed at any other person, let alone the explosion of violence that caused the death of the deceased. There is nothing in his past history that might have suggested to him the possibility that this might happen. Thus, although the psychosis was the consequence of his drug taking, his doing so was not culpable in the sense that he realized that it was possible that one of the effects of his doing so might be that he could commit acts of uncontrollable violence.

27 In all the circumstances, having regard in particular to the extent of the violence with which the deceased was killed, I have concluded beyond reasonable doubt that the offender intended to kill the deceased. Whilst I think that the offender’s reasoning was very substantially distorted by his mental condition and that it was this condition which induced his loss of self-control, he was not acting as an automaton; to use the vernacular, although his intention to kill was “mad”, it was nevertheless present. I reject the reasonable possibility that the offender intended only to cause grievous bodily harm: the violence is simply too extensive for this possibility to be reasonably open. At the same time, had it not been for the psychosis which he was suffering at the time, I do not believe the offender would have committed this dreadful crime.

The offender’s history

28 The psychiatric condition affecting the offender at the time of the offence is obviously a matter of considerable importance. In dealing with the offender’s culpability, it is necessary, in my view, to consider not only the condition, but also its history and the circumstances out of which it arose. The following account is extracted from the evidence given by the offender at the trial (which I accept as reliable) and the opinions of the psychiatrists who gave evidence at the trial, Dr Skinner (for the Crown) and Dr Westmore (for the defence). I should state, however, that I regard the opinion of Dr Westmore about the nature of the offender’s condition at the time of the offence as the more persuasive of the two, partly because I thought his account overall more coherently linked to the circumstances and my own judgment of them – including, in particular, the horrific character of the attack itself and the subsequent dismemberment. The significant weakness in the cogency of Dr Skinner’s conclusion was the fact that she was unaware of the nature of the attack upon the deceased and, I think, underestimated the massive violence constituted by his almost immediate dismemberment of the body. Moreover, Dr Westmore’s view of the offender’s mental state in the period immediately preceding the offence more closely accords with my own view – drawn from the evidence as a whole, including that of the offender – of his behaviour at that time.

29 The offender described a happy and secure childhood whilst he was growing up in rural Victoria but which gradually became more difficult after the family moved to Canberra when he was about eight years old. For some reason he experienced significant difficulty in adjusting to the change, marked amongst other things by difficulty in forming friendships at school. His closest friend was accidentally killed by falling from a rooftop and fracturing his neck. His death significantly affected the offender. When he started high school he began to suffer health problems involving the loss of weight and significant enervation which became so bad that he started to fall asleep in class. At the age of twelve he was diagnosed with insulin-dependent diabetes requiring injections four times a day. This in itself was a serious matter for him but it also meant that he had to give up competitive basketball and football in which he had been involved because of the risk, as I understand it, of the effect that intense physical activity might have on his blood sugar levels, so that he was restricted to social sport. He had been a good student at primary school but his performance at high school, perhaps not surprisingly, was adversely affected. Aside from the adjustment difficulties to which I have adverted, his problems with coping with ordinary school life because of his undiagnosed diabetic condition led to conflict with teachers and social isolation.

30 About a year later, the offender’s grandmother, to whom he was close, died after a protracted period of illness from a malignant brain tumour. Something like a year after this, the offender’s mother was diagnosed with breast cancer and underwent a lengthy period of chemotherapy. As she was gradually recovering she was diagnosed with cancer in her other breast and treatment recommenced. This caused significant depression.

31 As these things were happening the offender was introduced to the use of marijuana by school friends. At about sixteen or seventeen he commenced using amphetamines which he obtained from a school friend who had been prescribed dexamphetamine for Attention Deficit Disorder. The use of amphetamines started about the year 2000. He said that it made him feel confident and energetic, comfortable in himself and not concerned or anxious about everything.

32 The offender changed school to undertake year 11 studies and was introduced to ecstasy and cocaine, which he added to amphetamines, these substances also being taken by those with whom he was associating at the time. Although he periodically used other drugs, he mainly used amphetamines.

33 The offender’s relationship with his parents became strained due to his increasing substance abuse and associated problematic behaviour and he left home to reside with a number of friends although he returned home for brief periods on several occasions. The offender had commenced self-harming behaviour soon after he was diagnosed with diabetes with the frequency and seriousness of this conduct increasing over time.

34 The offender left school at the age of sixteen and worked in a number of different jobs but his ability to maintain employment was adversely affected by his addiction. He was unable to function without taking drugs but the effect of the amphetamines upon him was to create increasingly paranoid and delusional experiences. In July 2002, he was brought into Canberra Hospital presenting with self-harm, multiple minor lacerations to his arms and neck although he said that these injuries were not suicidal but “a release of anger”. He did not wish to see the mental health crisis team. He said that he injected some amphetamines on the evening before his presentation at the emergency department. On 6 August 2002 he came to the hospital concerned that he had run out of glucometer strips needed for his diabetic condition and complained of having painful cold and swollen hands for the preceding two weeks. He also told hospital staff that he had taken amphetamines earlier that evening. He appeared to be agitated and pale but was discharged with glucometer strips and an offer of diabetic education which he refused.

35 On 11 August 2002 the offender was brought in by police for an assessment of the mental health team. It appears that he had a two-week history of increasing sleeplessness and irritability and self-destructive behaviour including a para-suicide attempt with evidence on history of auditory hallucinations and paranoid delusions. He was noted to be an amphetamine user. An order for his involuntary detention was made under the Mental Health Act on 21 August 2002 upon the evidence of his general practitioner who had seen him on the previous day and his parents, that he was suffering from a severe mental disturbance with auditory hallucinations. His unstable diabetes was complicating the picture. There were no distortions of perception evident but he had admitted to hearing voices two weeks before. Due to paranoid ideation he had moved back to his parents’ home. He had apparently destroyed some furniture in his parents’ house in fits of fury. He was released three days’ later after sedative and anti-psychotic medication. It appears, however, that he did not continue to take that medication after some little time.

36 It is obvious from this history that the offender’s commencement of and his continuous amphetamine use was significantly instigated when he was very young indeed by a number of major crises in his life. As he said, the drugs provided a way by which he could feel both better about himself and secure and hopeful about the future. Of course, such drug-induced feelings are a delusion, a delusion which becomes distressingly obvious as soon as the effect of the drug wears off. He did not commence drug taking as a mature person, nor even as a young person approaching maturity. He was a child, a child who became addicted to a substance that enabled him, for a short time, to think that his life was or could be worthwhile. His ability to cope with the stresses in his life and his response to those stresses must be viewed in that context. To treat him as a recreational drug user would be not merely to be quite inaccurate but grossly unjust as well.

37 The conclusion that the offender suffered from a drug-induced psychosis in August 2002 is inevitable and, indeed, is agreed both by Dr Skinner and Dr Westmore. I do not doubt that this condition returned when he recommenced his use of amphetamines either later in 2002 or early 2003 and that he was suffering from the psychosis which then re-emerged at the time of the killing, quite possibly complicated by his badly controlled diabetes. Although there had been some violence expressed in his destruction of property and his para-suicidal attempts that led to his admission to hospital in the previous August, there was nothing that suggested such extraordinarily violent conduct as was inflicted on the deceased.

Present situation

38 Since his reception to custody on 19 April 2003, the offender has participated in a drug and alcohol programme of twelve weeks’ duration and a further six weeks’ relapse prevention programme. His case file indicates that he was a motivated participant in both programmes. Dr Westmore considers that his intelligence presents as being of high average to above average. There are now no signs of his compromised mental state, which has gradually but progressively improved. He has the support of his family and his father in particular. I accept the correctness of Dr Westmore’s view that his longer-term prognosis both from a forensic and a psychiatric perspective will be very good provided he remains completely free of illicit drugs. Of course, this will be difficult for him but, as his maturity increases – in short, as he grows up – his ability to cope with the stresses of life and resist the temporary but destructive attraction of drugs will increase.

39 The offender has expressed remorse for his actions and has acknowledged the pain and grief he has caused the victim’s family. I consider that this is genuine.

Relevant sentencing principles

40 I have said a great deal about the offender. That is not surprising, since he was on trial and I am bound by law to explain the reasons for the sentence that I have a duty to impose. But the tragic events that give rise to these proceedings have had catastrophic consequences for others, including, of course, the family and friends of Ricky Smith. He was only 41 years of age when he died. He had a daughter who was only just over 4 months old at the time.

41 In their statements, the sister and brothers of the deceased tell of his good qualities as a sibling and a father. They speak passionately of their love for him and the immense and continuing grief that his death has caused.

42 It is important to understand, however, that by permitting victim impact statements to be received in a hearing such as this, the law does not thereby place them to be weighed by the Court in the scales of justice. The taking of a life is the gravest injury known to the criminal law. It cannot be made more serious because the victim's death is the cause of pain or grief to others, however intensely felt or more grave because of the loss of that life, with all its potential for good, to the community. The life of one person cannot be regarded as more valuable than the life of another, or the killing of one person as more grievous than the killing of another, because of their personal or social circumstances. To do this would undermine the moral standards essential to the maintenance of the rule of law. It would be wrong to take one day from an otherwise appropriate sentence because the deceased was selfish, obnoxious, cowardly and without friends or family to grieve for him or her. By exact parity of reasoning, it cannot be right to add a day to an otherwise appropriate sentence because the deceased was honourable, loved and surrounded by friends and family. If this were not so, counsel for the killer might rationally submit that as the victim was of the former character, the crime was less grave, and the sentence should be more lenient, and the Crown Prosecutor, by pointing to a grieving family, angry onlookers, or an indignant media, submit to the contrary. In this very case, the deceased was a drug dealer who supplied a substantial quantity of amphetamines to a group of young people, two of whom were children of seventeen. It seems certain that the amphetamines that he supplied triggered the offender’s relapse into psychosis. But this does not justify his death in any sense. He was as entitled to the protection of the law as much as any other citizen. It cannot be the case that, in passing sentence on the person who killed him, the court would attempt to weigh the character of the deceased, to place in the scales on the one hand the feelings of his friends and relations and in the scales on the other the crimes to which I have referred. The virtues or vices of the deceased, the extent of his or her social connections and whether the death caused grief or passed unnoticed by an indifferent public would then become the subject of evidence and argument. The law will neither value a life nor punish a death by such a demeaning process.

43 Perhaps more difficult to accept but also crucial to the due administration of justice is the notion that the value that the law ascribes to the life which has been taken arises from and reflects that same sense of reason and humanity which values the lives of the persons who come before the courts for punishment. The punishment imposed by the courts is measured not by the standards of the criminal but by our standards as a civilised and humane community, not so much by respect for the offender but by our ownself-respect.

44 Thus, in dealing with offenders, the court must remain objective and dispassionate. Public justice requires all the relevant facts to be carefully weighed. They include much more than the end result of the crime itself but also the events which gave rise to it, the intentions of the offender, his or her personal characteristics and attributes, and the various explanations for what he or she did. The public interest must be reflected in the outcome. These considerations often will be in tension if not in conflict.

45 The High Court of Australia said in Veen v The Queen (No 2) (1988) 164 CLR 465, per Mason CJ, Brennan, Dawson and Toohey JJ (at 476) –

“…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. The purposes of criminal punishment are various: protection 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. They are guideposts to the appropriate sentence but sometimes they point in different directions….”

46 The unlawful taking of a human life is always viewed as a serious matter: R v MacDonald (unreported, NSWCCA 12 December 1995). As Barr J said in R v Sette [2000] NSWSC 648, when dealing with manslaughter “the range of sentences is wide and depends to a significant degree upon the degree of impairment of the offender’s capacity and the effect it has upon the assessment of [his] criminal responsibility.” His Honour also pointed out that it is necessary to recognise “the need, where it exists, to protect the community”. Although the requirements of general deterrence will usually not be accorded much weight in cases where mental illness was a substantial causative factor in the commission of a crime, it is not entirely to be left out of account. And the need for personal deterrence might well, in some cases, be enhanced.

47 In the present case, I am much influenced by the consideration that the offender commenced taking amphetamines at a very young age at a time when the invitation and opportunity to do so coincided with a series of grave crises in his personal life and when his personal resources, I accept, were insufficient to provide the means of resistance. As I have said, the offender is very far removed from the person of mature years who takes drugs as a means of recreation. He was a child trying to cope with overwhelming problems. He became addicted and, like many, had tried but failed to overcome his addiction.

48 The state of mind of an offender at the time of the crime is, of course, part of the objective circumstances of the offence. In the case of manslaughter by virtue of s23A of the Crimes Act 1900, it is of the essence of the offence. The offender killed the deceased in a ferocious, unreasoning attack that involved the horrendous dismemberment of his body. I am satisfied that it would not have occurred had he not been suffering from a psychosis at the time. I am satisfied that the psychosis had been triggered by his earlier ingestion of amphetamines but that he was not under the influence in any relevant sense of the drug at the time. It is not possible to completely discount, either, the effects of his badly controlled diabetes on the ability to think clearly.

49 I am satisfied that the offender had no reason to think, when he succumbed to his addictive craving for the drug, that it might result in his doing or attempting anything remotely like that which occurred. I am satisfied also that, not merely did his loss of self-control result from the psychosis but also that he would not have formed an intention to cause injury, let alone kill, had it not been for his psychosis. The killing was impulsive and in no sense premeditated.

The significance of the offender’s age

50 It is obvious that the relative youth of the offender is a material factor on the question of sentence. The courts have always taken into account the relative youth and immaturity of an offender. The reasons are obvious. Quite apart from the public interest in rehabilitation, there may well be, and usually will be, a significant difference in culpability between an offender who is of a fully mature age and an offender who has not reached such an age: Hearne 124 A Crim R at 438, citing Allam (unreported) NSWCCA, 13 April 1993, WKR (1993) 32 NSWLR 447; 71 A Crim R 95. Of course, this is a matter of degree but the weight to be given to the element of youth does not vary depending on the seriousness of the offence, although “that is not to say that other factors such as deterrence or retribution may not have a relatively greater part to play in the more serious offences than they do in less serious ones”: Hearne 124 A Crim R at 458 [23-24]. The Court in Hearne also noted (ibid at [26]) that a “similar approach of imposing a sentence less than otherwise appropriate is taken where an offender, though not legally insane, suffers from significant intellectual disability…[taking into account] the extent and significance of the disability”. The Court observed –

“It is, at least in part, for a similar reason that the courts have taken the view that, the younger the offender, the greater the weight to be afforded to the element of youth.”

51 The issue of rehabilitation for young offenders is an important, though not the only, element of setting an appropriate sentence. I am satisfied that the offender’s prospects for rehabilitation are good. Having regard especially to his relative youth and the need for supervision once he is released into the community, I consider that there are special circumstances justifying departure from the statutory ratio between the non-parole period and the balance of the term of imprisonment.

52 The offender pleaded guilty to manslaughter on arraignment and had indicated that he was prepared to do so at a relatively early stage. That plea was, properly, not accepted by the Crown in discharge of the indictment. It seems to me that the considerations of public policy expressed in R v Thomson and Houlton (2000) 49 NSWLR 383 apply to the case where, as here, a plea proffered by an accused is rejected by the Crown but ultimately accepted by the jury, even though a trial has been required. There is a utilitarian justification in encouraging such pleas. I have, accordingly, given the offender the benefit in the order of a 20% discount deducted from the sentence that otherwise would have been imposed.

Order

53 The overall sentence I impose is one of eight years imprisonment, comprising a non-parole period of four years to commence on 19 April 2003 and expire on 18 April 2007 and the balance of the term commencing 19 April 2007 and expiring 18 April 2011.

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