Regina v Gardiner

[2001] NSWSC 1147

CITATION:	Regina v Gardiner [2001] NSWSC 1147
FILE NUMBER(S):	SC 70064/01
HEARING DATE(S):	26/11/01, 27/11/01, 28/11/01, 29/11/01, 30/11/01, 03/12/01, 06/12/01
JUDGMENT DATE:	6 December 2001
PARTIES :	Regina v Roger William GARDINER
JUDGMENT OF:	Whealy J at 1

COUNSEL :	Mr T Hoyle SC - Crown Mr J. Stratton - Prisoner
SOLICITORS:	Office of the Solicitor for Public Prosecutions Legal Aid
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
CASES CITED:	R v Isaacs (1997) 41 NSWLR 41 374 at 378 R v Olbrich (1998) 45 NSWLR 538 at 543 McDonald (NSWCCA unreported 12 December 1995) R v Previtera (1997) 94 A Crim R 76 Bollen v R (1998) 99 A Crim R 510 Veen (No 2) (1998) 164 CLR 465 at 473 and 477-78 R v Oinonen (1999) NSWCCA 310 A. G's Application (No 1) R v Ponfield (1999) 48 NSWLR 327 R v McGuire (NSWCCA unreported 30 August 1995) Regina v Troja (NSWCCA unreported 16 July 1991) R v Alexander (1994) 74 A Crim R 141 at 144 Camilleri (NSWCCA 8 February 1990 unreported)
DECISION:	Roger William Gardiner, I sentence you to a head term of 7 years and 11 months imprisonment. The sentence is to commence on 17 July 2000. I set a non-parole period of 5 years commencing on 17 July 2000 and ending on 16 July 2005. The prisoner will be eligible to be released to parole on that day, 16 July 2005. I recommend that while in custody the prisoner receive appropriate counselling including psychiatric counselling and anger management counselling.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

WHEALY J

THURSDAY 6 December 2001

70064/01 - REGINA v Roger William GARDINER

SENTENCE

1 HIS HONOUR: The prisoner, Roger William Gardiner was indicted on 26 November 2001 at Lismore on a charge of murder. To this indictment he pleaded not guilty. The trial commenced before me and a jury of 12 on that date and continued until 30 November 2001, when the prisoner was re-arraigned at his request and that of the Crown. He pleaded guilty to the charge of manslaughter. As a consequence, the jury was discharged and the prisoner was convicted of the charge of manslaughter relating to the death of the deceased Anthony Selke. The sentence hearing commenced on that day and continued on Monday, 3 December 2001. The matter was then adjourned to Sydney to today, 6 December 2001 when the sentence hearing was completed.

2 The maximum penalty for the crime of manslaughter is imprisonment for 25 years.

3 I am required to find the facts relevant to sentencing. It is necessary that the facts I find must, so far as they relate to findings of facts against the prisoner, be findings arrived at beyond reasonable doubt (Regina v Isaacs (1997) 41 NSWLR 374 at 378). The onus of proof going to matters of mitigation is on the prisoner who must establish such matters on the balance of probabilities (Regina v Olbrich (1998) 45 NSWLR 538 at 543).

4 Although the prisoner offered a plea to manslaughter and the plea was accepted by the Crown, there has been no agreement between the Crown and the prisoner as to the basis of the manslaughter plea. I should say that, in my opinion, it is generally desirable that there be agreement between the Crown and the defence when a plea is offered and accepted in this manner. I do not consider that it is generally desirable that it should be left to the sentencing judge to determine the basis on which the plea has been made. The submissions that have been made by counsel in this matter are a good illustration of the problems that may arise. For example, the submissions of the Crown were that the prisoner should be sentenced as if his culpability were to be assessed by reference to a version of the facts, which virtually established murder. The defence on the other hand argued that the facts should be found so as to result in culpability being assessed as if the factual situation virtually established accidental death. I can well understand the reasons underlying the difference between the submissions made by both learned and experienced counsel but such a situation leaves the Court, or at least it may leave the Court, in a difficult situation in relation to the sentencing process.

5 Ultimately, in the present case I have found no such difficulty. It is clear to my mind and is a matter established beyond reasonable doubt that this was a case of manslaughter by provocation.

6 I shall now briefly state the facts I have found. The prisoner had come down from Queensland to Byron Bay about four weeks before 17 July 2000. He spoke to his cousin Martin Robson and his cousin’s wife Sigrid. On that occasion, the prisoner informed them that he was planning to move down from Jacob’s Well. About two weeks later the prisoner and a friend of his named Blue came to the Robson’s house at Suffolk Park. They informed Sigrid that they were living in a motel. The intention was that Blue would go back to Queensland to get some of his belongings and rejoin the prisoner who was going to wait for him in Byron Bay.

7 It appears that the prisoner and the deceased had first met one another about two months or so before 17 July 2000. This was at a house in Wotherspoon Street, Lismore. A third man was present, Mark Walsh. During that meeting the prisoner agreed to buy some camera accessories from the deceased for about $50.00.

8 About six weeks before the 17 July 2000, Mark Walsh moved into the deceased’s townhouse at 54 Butler Street, Byron Bay. Mr Walsh was paying approximately $100 a week to occupy the two rooms upstairs in the townhouse. One of these rooms was used by him for the storage of gear and for sleeping purposes. The other room was occasionally used for sleeping purposes. Mr Walsh had known the deceased for a number of years through his mother who was a social worker in the Sydney College of the Arts.

9 About a week or so before 17 July 2000, the prisoner turned up at the townhouse at 54 Butler Street, Byron Bay. Ostensibly, he came to repay the $50.00 he owed the deceased in relation to the camera accessories. As well, he was looking for a place to stay for a few nights, presumably while waiting for his friend Blue to return from Queensland. It seems the deceased was prepared to allow the prisoner to move in and pay some rent money if he wanted to stay there. On this understanding, the prisoner was permitted to stay at the premises. It appears that for a few nights he slept in the lounge room downstairs. (I should interrupt this brief narrative to state that the deceased slept in the converted garage on the ground floor level of the townhouse).

10 On Sunday 16 July 2000 there were verbal altercations between the deceased and both Mr Walsh and the prisoner. In his record of interview, the prisoner said that on the Sunday the deceased was “nasty and abusive” in the flat. He had abused Mr Walsh in the morning and he started abusing the prisoner during the afternoon. He said (at ERISP A 94) the deceased used “cruel words”. The abuse related to the deceased’s belief that the prisoner was not contributing anything or at least not contributing enough in relation to the accommodation he had been given. It also appeared that Mr Walsh then suggested to the prisoner that he should sleep the night in the upstairs bedroom.

11 By the next morning, the prisoner had decided to move out. The upstairs bedroom was vacated and it seems that his belongings were parcelled up and he placed them in his vehicle. Before leaving, the prisoner went to see his cousin Martin Robson at Suffolk Park. As he had missed him by ten minutes or so, the prisoner spoke to Sigrid Robson and arranged to leave his amplifier and guitar in her garage while he went back to Jacob’s Well to track down his friend Blue. He told Sigrid that he had moved out of the townhouse at Butler Street and that a person there, presumably the deceased, had been abusive to him and the other flat mate.

12 Barbara Eady, a friend of the deceased, went with her daughter and son to the townhouse on 17 July at about a quarter to two that afternoon. She brought a heater over for the deceased as he had told her the previous day that he was not well and that he was very cold at the townhouse. The deceased came out to the car and spoke to her. He told her that there was “a power relationship that was building up” in the house between himself and the other two people that were living there. According to her evidence, the deceased asked her to come inside and to ask those two people to leave. She declined to do this. She said her daughter did not want to stay, as “she didn’t like the vibes in there”. After a further conversation, she and her family left. Mirabai Eady confirmed that she was there outside the deceased’s townhouse on 17 July 2000. She recalled that the deceased had brought up issues about his flatmates, that he was not happy with the relationship they had and he wanted to ask them to leave. He said he thought that it was unfair that they were not contributing to the unit and splitting the rent.

13 There was also evidence from the Estate Agent who managed the property that the rent was in fact in arrears as at 17 July 2000.

14 The events which then led to the death of the deceased, occurred quite rapidly. At 2 o’clock or thereabouts, Mark Walsh was working on his car trying to install a stereo amplifier in the vehicle. He was working on the car in the car park area on the western side of the townhouse. The deceased came out and informed him that he was going out and that he would be leaving the unit unlocked. Mr Walsh continued to work on his car after the deceased left. He had taken a bread knife out of the unit earlier to help cut the plastic away from the wires that were being used in connection with the installation of the stereo amplifier. A short time later the prisoner arrived and drove into the car park. He parked his vehicle directly behind Mr Walsh’s car. The prisoner came over and agreed to assist Mr Walsh with the electrical wiring for the stereo amplifier.

15 According to the statement Mr Walsh gave to the police on 17 July 2000 he said: -

“6. While Roger and I were still working on the car Anthony came out of the unit around to the side gate and said something to Roger. I can’t recall the exact words that Anthony said to Roger but it was some general conversation over the sleeping arrangements and rent. Anthony appeared to be very angry and aggressive particularly in the way he spoke towards Roger and I.
7. At this point Roger walked over towards the gate where Anthony was. I can’t recall seeing Roger pick up the knife. He was working on the car and he must have already had it in his hand. He walked over towards Anthony at the gate. They had words between the two of them. Anthony started yelling at Roger. I can’t recall exactly what they said but it was along the general conversation of domestic living and sharing within the flat.”

16 Senior Constable Robert Wilson made an entry in his police notebook on 26 July 2000 at Byron Bay Police Station. This set out the conversation that he had had with Mark Walsh on 17 July 2000. He recorded Mark Walsh as saying, when he was asked to describe what had happened: -

“I didn’t see it exactly. I was there. I heard them arguing. I couldn’t see exactly what happened. I mean, I was taking notice. I heard him saying ‘What are you going to do with the knife?’ I saw him move forward … he was over the fence. The fence was between them. I didn’t see it exactly.”

17 The written statement made by Mr Walsh on 17 July 2000 continues at paragraph 8:

“I looked up and noticed Anthony leaning over the top of the gate. Roger was on the other side of the gate. The latch on the gate did not work. They were still arguing among themselves. Anthony appeared to step away from the gate then move forward again. The next thing I recall is Roger yelling out in a loud voice ‘He’s hurt, he’s hurt, get an ambulance’.”

18 In the ERISP, the prisoner gave a number of lengthy descriptions of his version of the events, which passed between himself, and the deceased at the time the deceased was fatally wounded by the knife. As well, the prisoner gave further descriptions of the same events at the time he was taken by the police on a video taped “walk through” of the premises on 19 July 2000.

19 In short, he said that the deceased came to the gate while he and Mark Walsh were working on the motor vehicle. The deceased was abusive to both men and then he called out the prisoner’s name and said “Don’t ignore me when I am talking to you”. The prisoner holding the knife in his left hand at the time (he being right handed) and as he came closer to the gate the deceased began swearing at him angrily and aggressively. The deceased continued to abuse the prisoner and then pushed the gate open onto him swearing at him again. The deceased then attempted to strike the prisoner with his hand. It was during these verbal and physical altercations with the two men standing close to each other that the fatal wounding occurred.

20 I am satisfied beyond reasonable doubt that this is what occurred: First, the deceased was volubly swearing at and abusing the prisoner. Secondly, the deceased’s anger, his language and demeanour increased in intensity. By this time, the prisoner had raised the knife and it was in these circumstances that the deceased said angrily “What are you going to do with the knife?” The deceased pushed the gate against the prisoner and moved towards him swinging his arm and fist at the same time.

21 The prisoner, angered by the language, gestures and conduct of the deceased lost his control, raised the knife in his left hand and struck downwards at the deceased. The knife entered the right side of the deceased’s neck and travelled downwards through the soft tissue. It severed the right carotid artery and continued downward until it pierced the upper lobe of the deceased’s lung.

22 The deceased stepped back from the gate with blood coming from the wound. It was immediately apparent to the prisoner what he had done. The deceased staggered off towards the verandah and kitchen of the townhouse, bleeding as he went. The prisoner called to Mr Walsh to get help. He cried out for the latter to get an ambulance. He ran to the next door neighbour’s flat and tried to get help. From all accounts, he was in a state of significant panic and anxiety. He attempted to give mouth to mouth resuscitation to the deceased and endeavoured to keep him alive. Mr Walsh ran to the nearby Byron Bay Police Station and returned with police officers. Their evidence was that when they came to the townhouse they found the prisoner cradling the deceased’s head in his arms. It appeared he had been giving mouth to mouth resuscitation in an endeavour to revive the deceased. He was wailing and sobbing and kept repeating, “Why did he do it?” He told the police that he had the knife and that they had been arguing.

23 Shortly afterwards, the accused was arrested and taken to the police station.

24 The version given by the prisoner during his ERISP and later during the “walk through”, was similar in many respects to the factual situation I have found. It differed at the critical point where the deceased was wounded. According to the version given by the prisoner, he had been holding the knife loosely in his left hand between the forefinger and thumb, but not exerting any pressure on it at all, when he was attacked by the deceased. He had held up both his hands and moved his head to one side to avoid being struck. The knife was pointing up, it was perpendicular. He said, because he had his eyes closed and his head turned away, he did not see what happened. He felt the knife move in his hand and when he looked back he saw the deceased had hold of his throat. He said to him “What happened, what happened?” He said the deceased ran back inside bleeding from his neck.

25 I reject this aspect of the version of the events as described by the prisoner. In my opinion, the forensic evidence does not support it at all. This body of evidence made it clear that it would have been necessary for the application of at least moderate force for the knife to pierce the skin of the deceased. If the knife had been held loosely in the manner suggested by the prisoner, I do not accept that the knife would have pierced the deceased’s neck at all. Rather it would have been deflected or knocked aside. Secondly, and more significantly, the wound tracked in a downward direction. The blade of the knife was 20 centimetres long. It was serrated on one side only. There was a blood smear on it for the length of 10 or 11 centimetres (see photos 55 and 56 – part of trial Exhibit “H”).

26 The distance from the skin surface to the deepest part of the wound sustained by the deceased was about 11 centimetres. These factors were consistent with the knife having been raised upwards by the prisoner and struck downwards into the deceased’s throat piercing the artery and the upper lobe of his lung. While an alternative hypothesis was advanced to both Dr Botterill and Dr Collins that the wound may have been consistent with a situation where the deceased’s head, neck and upper body were horizontal to the ground and the knife was horizontal as well, this struck me as a most unlikely situation. While there was no doubt that the deceased was leaning over the gate, he was considerably taller than the prisoner. In my view it is not only unlikely but impossible that the deceased and the knife were in this horizontal position, vis a vis one and the other.

27 I should say however, that in general terms, I found the evidence of Mr Walsh unreliable and lacking in credibility. This is particularly so in relation to Exhibit “E”, a statement he made at Murwillumbah Police Station on 15 February 2001. I can place almost no value on that statement at all. He was cross-examined about his evidence given in chief insofar as his evidence purported to reproduce the contents of Exhibit “E”, the cross-examination demonstrated that this part of his evidence was unreliable and devoid of credibility. I am prepared however, to place a reasonable degree of weight on the statement he made to the police officers on the day of the death of the deceased, namely 17 July 2000.

28 I am perfectly satisfied to the requisite degree that the deceased provoked the prisoner by his language, conduct and gestures. I am satisfied that his demeanour was angry and aggressive and that he was abusive and insulting to the prisoner. I am also satisfied that he pushed the gate against him and attempted to strike him. I am also satisfied that at that instant of time the prisoner lost his self control. At the same moment, he formed an intention to do really serious physical injury to the deceased. He deliberately swung his arm upwards with the knife in it firmly held. He then struck down at the neck or body of the deceased. I am also satisfied that the degree of provocation was such that it was capable of causing an ordinary person to lose self control and to act in the way in which the prisoner did.

29 It is quite clear that the prisoner regained his self control quite quickly when he saw what he had done. He became extremely upset at his own actions and the consequence of them for the deceased. He did what he could to save him but death was inevitable.

30 Much of the trial evidence, and indeed part of the sentence evidence, focused on the possibility that the deceased was, on 17 July 2000, likely to have been acting as he did because he was either affected by LSD or at least suffering a flashback episode as part of a response to LSD taken on an earlier occasion. I am not satisfied that this was so. But there is no doubt his behaviour on the day he met his death he was erratic, strange and unusual.

31 The principal submission on behalf of the prisoner relates to the degree of culpability involved in the commission of the offence. Mr Stratton submitted that, if the Court were to view the matter as manslaughter by provocation, the degree of culpability is to be regarded as towards the lower end of the scale. He analysed the circumstances by reference to the three principal matters that had been enunciated by Hunt CJ at CL in Alexander (1994) 74 A Crim R 141 at 144. Those matters were the degree of provocation; the lapse of time between the provocation and the loss of self control, and the degree of violence involved, that is whether it was excessive or not.

32 I accept that on the facts as I have found them to be, that the provocation was reasonably extreme in the present case; that the loss of self control was within a very short time frame and that the violence was restricted to one stab wound albeit, a fatal one. It was not premeditated. It was deliberate and serious physical harm was intended, but it happened on the spur of the moment. But there are reasons why, notwithstanding these matters, the objective circumstances of the crime remain serious. First, the principle stated in McDonald (NSWCCA unreported 12 December 1995) is not to be overlooked. Indeed, it has significance in relation to the present matter. In that case the Court of Criminal Appeal emphasised that the taking of a human life is a most serious matter. At p 8, the Court stated: -

“In a case such as the present, it is important to bear in mind the denunciatory role of sentencing. Manslaughter involves the felonious taking of a human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime (see The Queen v Hill (1981) 3 A Crim R 397 at 402). The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system.”
In The Queen v Hill (above) Street CJ said: -
“In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment, and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life.”

33 There is nothing in the facts of the present case that warrants the displacement of this principle.

34 Secondly, the fact that the prisoner was armed with a knife at the point of time he confronted the deceased makes the issue of culpability objectively more serious. Given that the prisoner was working with the knife and using it as a tool when the abuse began, it remains nevertheless the position that the prisoner took it with him to the gate. It is impossible to suggest he would not have known that he was carrying it with him towards the aggressor, even if it be accepted that he had not formed any intention to use it at that stage. But he held onto it and raised it during the more extreme verbal abuse when he was at the gate and its presence probably inflamed the deceased further as the dialogue between them plainly demonstrates. The presence of the knife in the prisoner’s hand during the more extreme section of the provocation made it more likely that, if he did lose his self control, it would be the deceased who would be highly at risk, as proved to be the case.

35 The third matter is the aggravating factor that the commission of this offence was itself as breach of a three year Recognizance entered into as a consequence of orders made by Ducker DCJ on 8 December 1999 at Lismore District Court. Moreover, the Recognizance related to an appeal from a Magistrate’s conviction made on 16 November 1998 which in turn related to an offence which itself involved a degree of violence towards another person. The offence was a breach of s 112(1) of the Crimes Act 1900 - break and enter building with intent to commit a felony – which had occurred on 11 April 1998. The allegation was that the prisoner had entered premises at South Golden Beach and, while there, kicked and punched the victim in the head. He was sentenced by a local magistrate to full time imprisonment. This sentence, as I have indicated, was suspended by Ducker DCJ in February 1999. The terms of the Recognizance included that he report to the Probation and Parole Service and obey all directions of the officer-in-charge, including directions relating to psychiatric treatment whether in or outside an institution or hospital. Supervision was not to be terminated without order of the Court. It appears however, from the material provided to the Court today, that it could not be definitively stated that the prisoner was in breach of those specific conditions and the Crown does not rely on any breach of those conditions as an aggravating factor.

36 The combination of the objective circumstances of the offence especially in the light of the last two matters I have identified lead me to the conclusion that the degree of culpability involved in this killing was reasonably high. Certainly, I do not accept that it is at the lowest end of the scale.

37 Before continuing with the subjective features of the prisoner’s case I should at this stage say that pursuant to s 628(3) of the Crimes (Sentencing Procedure) Act 1999 I have received Victim Impact Statements from the deceased’s mother and sister. Those statements speak movingly and tragically about the effect upon the family of the deceased, of the untimely death of their loved son and brother. The Court extends to those persons its sympathy. Hopefully, they may find it has helped them to express themselves through those statements. However, I do not consider it appropriate to have regard to those statements in the determination of the sentence to be imposed. (See R v Previtera (1997) 94 A Crim R 76; Bollen v R (1998) 99 A Crim R 510)

38 It is next necessary to consider the prisoner’s subjective circumstances. He is 46 years of age; he has two children from prior relationships. The evidence was that he was devoted to the younger of these namely a daughter, Caitlin aged eight and a half. The evidence appears to indicate that he had not seen a lot of her in recent years although he had written to her and she to him.

39 The prisoner was born in New Zealand. His parents were schoolteachers, his mother being the Principal of a school in New Zealand. The prisoner came to Australia in about 1980. He has worked as a cameraman and a musician. He was, and is, quite talented musically but has not been engaged in regular work during this time.

40 The prisoner has a reasonably lengthy criminal history, although it comprises mainly minor matters. In New South Wales he had sustained convictions for driving and drink driving offences in the mid-1980’s. In 1989 he was convicted of offensive behaviour, stealing, being an unlicensed driver and speeding. In 1991 he was placed on a bond in relation to an assault charge and in the same year there were charges of stealing and making a false statement to a pawnbroker. There were further driving offences in 1991 and 1995. In 1997 he received a series of fines in relation to driving while unlicensed, being unregistered and uninsured and for possession of a prohibited drug. On 16 November 1998 he was imprisoned for six months for the offence, which I have described earlier. This was the subject of the Recognizance entered into as a result of the appeal to the Lismore District Court in February 1999.

41 In Queensland he was convicted in 1988 and 1993 for possession of a dangerous drug. He received Community Service for 160 hours for aggravated assault on a female child under the age of 14 years and for an assault occasioning bodily harm. It appears that these assaults related to a domestic argument between his de facto partner and himself during the course of which he was alleged to have assaulted his young daughter. There were some other minor matters in 1998 and 1999.

42 Finally, there were some driving offences in 1987 in Darwin. It seems the prisoner had something of a habit at that time for driving while unlicensed, uninsured and unregistered. These matters have no bearing on the present offence.

43 The aspect of the criminal history that has elicited a submission from the Crown relates to the violence of the prisoner as indicated in the 1998 offence which ultimately found its way to the Lismore District Court in 1999. Psychiatric evidence was apparently garnered and tendered in the appeal. A psychologist, Paul Elliott expressed a view that the prisoner was experiencing a moderately severe mental disorder. There was no suggestion that he had a mental illness but the disorder was characterised by generalised anxiety and depression. It was the view of Mr Elliott in his report at the time that there was a pattern of self pity, negativism and pessimism punctuated periodically by angry outbursts followed by expressions of guilt and contrition. Mr Elliott took the view that it would be advisable to implement methods to ameliorate these states of anxiety and depression. He recommended a clinical counselling programme, cessation of excessive use of either alcohol or cannabis, and medication for depression. Part of the sentencing material at that time included a report from a Community Correctional officer, Mr Edward Farris of 10 August 1998. Mr Farris expressed the view that the prisoner had “a dysfunctional personality, which might possibly contribute to future criminal offences unless psychiatric/psychological intervention was provided for his benefit as well as for the safety of the community”.

44 For the purposes of the present sentence hearing, Mr Stratton tendered a report from Dr Rosalie Wilcox dated 12 November 2001. This report had primarily been obtained with a view to obtaining an opinion as to whether the prisoner might be able to advance a defence of diminished responsibility. Dr Wilcox’s view was that Mr Gardiner did not suffer from any ongoing mental illness disorder. She thought that the prisoner did have a personality disorder. She noted that he had received treatment for depression while in custody.

45 Dr Wilcox gave oral evidence today. She confirmed the views she expressed in her report. She has since been provided with the material relating to the prisoner’s prior criminal history. It was her continued opinion that the prisoner suffered from a personality disorder but there was no mental illness. Overall she did not think that there were any “warning lights” signalling an element of dangerousness in the prisoner’s make-up. She thought it desirable that the prisoner continue to receive counselling in prison and, in particular, anger management counselling, if that facility were available to him. When he is released from custody, she thought that the prisoner should seek out and continue psychological counselling. He should have his mental state monitored, particularly in relation to his levels of depression, and should take medication if required. He should stay away from illicit drugs and alcohol. Dr Wilcox was hopeful that in the time the prisoner would learn to moderate his impulsiveness and so be better able to control himself.

46 The ultimate submission by the Crown, having regard to all this material, was that recommendations reflecting Dr Wilcox’s views should be made part of the sentence and made available to both the Corrective Services Department and the Probation and Parole Service. This submission is, in my view, a sound one and there is no opposition, to the suggestion, by counsel for the prisoner. Further, I accept Mr Stratton’s submission that although there is a degree of violence in the prisoner’s past, the present situation is very far removed from the need to call in aid and act on the principles in Veen (No 2) (1998) 164 CLR 465 at 473 and 477-8.

47 For completeness, I should say that the prisoner tendered Achievement Awards he had received while in custody. This includes an Achievement Award for General Curriculum Options and also a significant Music Award. The Court was also provided with a series of references which had been given to Lismore Court in 1998/1999 and a reference from a fellow prisoner who has been receiving guitar lessons from the prisoner while he has been in custody. As well the Court has received today a helpful reference from Mr Michael Stevens, the Education Officer at MRC, Silverwater (Exhibit 6).

48 There were two further matters relied upon by Mr Stratton. The first of these was a submission that the prisoner is entitled to a discount arising out of the fact that he has pleaded guilty to the manslaughter charge and that this plea has been accepted by the Crown. Mr Stratton has argued that the prisoner is entitled to a discount, first, on the basis of the “pragmatic” value of the plea and secondly, because it demonstrates contrition on the part of the prisoner. As to contrition, Mr Stratton suggests that there is ample evidence of this in the two videos where the prisoner was interviewed. The proffer of the plea, occurring when it did, reinforces the element of contrition.

49 The second submission arises out of two Schedules which have been prepared and provided to me. These are in effect an analysis of the sentences imposed in relation to stabbing charges and provocation cases generally. Today Mr Stratton has provided me with further authority to support the propositions he advanced based on that material.

50 The Crown has responded to the first of these matters by suggesting that the plea was made virtually at the end of the hearing. Mr Stratton argues, however, that a plea was offered, at least informally, shortly prior to the commencement of the hearing but at that stage it was not accepted by the Crown. In my opinion, the prisoner is entitled to a discount for his plea and I propose to make an appropriate allowance for this in the ultimate sentence. (See s 22(1) of the Crimes (Sentencing Procedure) Act 1999; R v Oinonen (1999) NSWCCA 310; A.G’s Application (No 1); R v Ponfield (1999) 48 NSWLR 327) I take the view however, that, the allowance, having regard to the timing of the offer of the plea, should be a relatively moderate one. I propose to allow a 12 per cent discount. I accept that, in addition to the plea, the prisoner has otherwise shown remorse, albeit mixed with a concern for the dreadful situation he found himself in immediately after the death of the deceased. In this mixture of responses is plainly shown in the videos.

51 In relation to the two Schedules, it is necessary to bear in mind, that, in the case of manslaughter especially, neither a consideration of statistical information nor an examination of the results in other decided cases illuminates in any decisive manner the decision to be reached in a particular case. Sentences for manslaughter vary greatly because of variations in the circumstances of the individual instances of the offence (Regina v McGuire (NSWCCA unreported 30 August 1995); Regina v Troja (NSWCCA unreported 16 July 1991); Regina v Alexander (supra)).

52 In the present case, the prisoner deliberately and intentionally struck out at the deceased who had provoked him severely and in circumstances where the prisoner had lost his self control. The presence of the knife in the prisoner’s hand at the relevant time was, for the reasons I have already expressed, a matter which rendered the level of culpability more serious. It is the sad fact that, notwithstanding the severity of the provocation offered, the deceased would probably have come to no harm, and this confrontation between the two men would have petered out after a short time, had it not been for the fact that the prisoner was in possession of a knife at the time he lost his self control. The sentence I impose must be commensurate with the seriousness of the crime in the sense that it should, having regard to all the proved circumstances, accord with the general moral sense of the community. It must also serve as a sufficient deterrent both to the prisoner and to others. The fundamental purpose of punishment is the protection of society. (Camilleri (NSWCCA 8 February 1990 unreported)). While the previous character, conduct and probable future life and conduct of the prisoner must be given the most careful consideration, these are matters which are necessarily subsidiary to the main consideration, which determines the appropriate amount of punishment. That consideration, as I have sad, is the protection of the public.

53 Mr Stratton submitted that I should find special circumstances in this case. In my opinion, there are such circumstances. The prisoner is to serve a prison sentence for the first time. The psychiatric evidence demonstrates that, particularly having regard to his mental disorder and to his depression and anxiety states, he will need assistance on returning to the community at the end of his sentence.

54 I have concluded that without discount for plea a head sentence of nine years would be an appropriate term of imprisonment. I propose to apply a discount to this related to the prisoner’s plea of guilty. Accordingly, after allowing for the appropriate reduction of 12 per cent, I intend to impose a head sentence of seven years and eleven months imprisonment. In setting a non-parole period I have taken into account the special circumstances that I have found to exist in the present case. The prisoner has been in custody, bail refused since 17 July 2000. I propose to backdate the sentence to take into account this period of time spent in custody.

55 Roger William Gardiner, I sentence you to a head term of seven years and eleven months imprisonment. The sentence is to commence on 17 July 2000. I set a non-parole period of five years commencing on 17 July 2000 and ending on 16 July 2005. The prisoner will be eligible to be released to parole on that day, 16 July 2005.

56 I recommend that while in custody the prisoner receive appropriate counselling including psychiatric counselling and anger management counselling.

57 I further recommend that, upon release pursuant to any parole order, the Probation and Parole Service might consider, as part of any supervision program relating to the prisoner, that he be required to accept the direction of the Probation and Parole Service in relation to receiving continuing psychological counselling including anger management. Further, that he be directed as to his use of alcohol and illicit drugs during any period of parole.

58 I direct that a copy of my remarks on sentence and a copy of the transcript of evidence of Dr Rosalie Wilcox be forwarded to the Corrective Services Department and to the Probation and Parole Service to be kept with, and as part of files held by each of the Departments in relation to the prisoner.

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Last Modified: 12/20/2001