Regina v Hantis

[2005] NSWSC 549

CITATION:	Regina v Hantis [2005] NSWSC 549
HEARING DATE(S):	18/05/05-20/05/05, 23/05/05-26/05/05
JUDGMENT DATE :	17 June 2005
JUDGMENT OF:	James J at 1
DECISION:	Manslaughter sentence - 4 years non-parole, with a balance of the term of 4 years; Firearms offence sentence - 6 months fixed term of imprisonment

CATCHWORDS:	CRIMINAL LAW - sentence - plea not guilty to murder - verdict of guilty of manslaughter - substantial impairment by abnormality of mind (Crimes Act 1900 (s23A)) - severe depression
LEGISLATION CITED:	Crimes Act Crimes (Sentencing Procedure) Act Firearms Act
CASES CITED:	R v Blacklidge: unreported, NSWCCA 12 December 1995 R v Isaacs (1997) 90 A Crim R 587 The Queen v Olbrich (1999) 199 CLR 270
PARTIES:	REGINA v Jacques Louis Guy HANTIS
FILE NUMBER(S):	SC 2004/32
COUNSEL:	MC Grogan - Crown AM Webb - Prisoner
SOLICITORS:	W Ness - Crown WR Goodman & Associates - Prisoner

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

17 June 2005

2004/32 REGINA v Jacques Louis Guy HANTIS

SENTENCE

1 HIS HONOUR: On 25 May 2005, after a trial presided over by me, a jury found the prisoner Jacques Louis Guy Hantis not guilty of the murder but guilty of the manslaughter of Andre de Groote on 28 September 2003 at Callala Bay, which is near Nowra.

2 On 2 July 2004 the prisoner had pleaded guilty to committing an offence under s 7(1) of the Firearms Act of possessing a firearm without being authorised to do so by a licence or permit.

3 A hearing of proceedings for the sentencing of the prisoner for both offences took place on 3 June 2005.

4 As the sentencing judge it is part of my function to determine the facts relevant to sentencing for each of the offences. I am mindful that facts adverse to the prisoner must be proved beyond reasonable doubt, whereas facts favourable to the prisoner need only be proved on the balance of probabilities (The Queen v Olbrich (1999) 199 CLR 270 at 281 (27)). I will first find facts relevant to the offence of manslaughter, which is obviously by far the more important offence.

5 The prisoner himself did not give evidence either in the trial or in the proceedings on sentence. The prisoner’s mother, Mrs Lily Hantis, who was Mr de Groote’s de facto wife and who was present, or at any rate close by, when Mr de Groote was killed, also did not give evidence in either the trial or the proceedings on sentence. However, notwithstanding the absence of evidence from either the prisoner or Mrs Lily Hantis, I consider that I am able to find, to the requisite standard, a number of facts relevant to the commission of the offence of manslaughter.

6 The prisoner was born on 25 May 1955 in Belgium. His parents were the late Mr Jean Hantis and his wife, Mrs Lily Hantis.

7 While she was still living in Belgium Mrs Lily Hantis formed a relationship with Andre de Groote. This relationship continued up until Mr de Groote’s death. During his lifetime Jean Hantis tolerated the relationship between his wife and Mr de Groote.

8 In about 1969 Mr Jean Hantis, Mrs Lily Hantis, Mr de Groote and the prisoner, who was then about fourteen years old, came to Australia.

9 The prisoner was married to his wife, Mrs Theresa Hantis, in about 1974. There have been two children of the marriage, a son Daniel now aged twenty-nine and a daughter Victoria now aged nineteen.

10 At some time after the prisoner’s marriage his father Jean Hantis died. Thereafter Mrs Lily Hantis and Andre de Groote continued living together.

11 Mr de Groote conducted a sewing machine business in Wollongong, that is a business of selling new and second-hand sewing machines and repairing sewing machines. Mr de Groote later opened a similar business in Nowra and the prisoner became the manager of the business in Nowra. Subsequently Mr de Groote disposed of the business in Wollongong and for a period he and the prisoner worked together in the business in Nowra. About ten to fifteen years ago Mr de Groote retired and sold the sewing machine business in Nowra to the prisoner. After the sale of the business Mr de Groote continued to own the premises in which the business was conducted and continued to do some of the repairing of sewing machines.

12 The prisoner, who had once been in the army, was interested in firearms and kept a number of firearms in a safe in an extension to the garage at the house in Nowra where he lived with his wife.

13 Over a period of several months leading up to 28 September 2003 Mrs Theresa Hantis noticed certain changes in the prisoner’s behaviour, including drinking alcohol more heavily than he had previously and not being in bed when his wife, who was a nurse, returned from work in the early hours of the morning. From time to time during this period the prisoner complained to his wife about Mr de Groote’s conduct in connection with the business, including what the prisoner regarded as excessive use by Mr de Groote of a petrol card. During this period Mrs Theresa Hantis described the prisoner to his face as being “like a bear with a sore toe”.

14 The prisoner’s wife has herself carried on the sewing machine business in Nowra since 28 September 2003. She had previously played no part in the carrying on of the business. On reviewing the affairs of the business after 28 September 2003, she found that the prisoner had seriously neglected the business in the months leading up to 28 September 2003.

15 On the evening of Friday 26 September 2003 the prisoner and his wife attended a farewell dinner for final year students at the school their daughter was attending. At the dinner the prisoner appeared “distant” to his wife. On the night of Saturday 27 September 2003 the prisoner and his wife held a dinner party at their home. The prisoner appeared to his wife not to be interested in the dinner party.

16 The early part of Sunday 28 September 2003 was unremarkable. The prisoner read the newspapers, he and his wife went to a nursery and in the early afternoon they visited their son and his wife.

17 Later in the afternoon the prisoner went alone to an ex-servicemen’s club at Nowra, which he often patronised. Images taken by security cameras at the Club show the prisoner entering the Club at 3.47 in the afternoon. No images were taken of persons leaving the Club but the last image showing the prisoner at the Club was taken at 5.24 and I find that he left the Club shortly afterwards.

18 While he was at the Club, the prisoner had a light beer and won $200 on a poker machine. He did not become even slightly intoxicated. An employee of the Club, who knew the prisoner, observed that, unusually for him, the prisoner was unshaven and that he was “a bit quieter than normal”.

19 Police who later investigated the death of Mr de Groote found a letter in the prisoner’s handwriting in a pocket of the shirt the prisoner had been wearing on 28 September 2003. The letter was addressed to “Theresa, Victoria, Daniel”, that is to the prisoner’s wife, daughter and son. In the top right-hand corner of the first page of the letter appear the words and figures “3.40 pm Sunday”. I find that the prisoner wrote the letter on Sunday 28 September 2003 and had completed writing the letter by the time he entered the Club at 3.47 pm. The letter was in the following terms:-

“3.40 pm Sunday

Therese, Victoria, Daniel
Why did I do it?
It is because I have failed all of you. With me gone you should be able to restart. Curse me if you must, as I curse myself.
Please bury me next to my father Jean in Mollymook.
Close the shop and ask Wally to find someone to finalise it all. No fire sale in Nowra. Return anything and everything to companies to pay bills. The outstanding one can wait for the matter to go through the courts. Take no shit from anyone. But forever stop the vultures.
$5,000 on bedroom table should see you for a while. Get Cole to organise a garage sale to sell all the crap in the garage. Tool to Daniel if he want them otherwise sell sell sell.
I had to get rid of him. Not only he was stealing from the shop but was quite blatant about it as he said I owed him – what I do not know. He has been waging a mini war with mum and yes I have seen the bruises from where he hits her.
I do love all of you.
Jacques/Dad”.

A note in the margin on the first page of the letter read:-

“Do not reopen the shop. Put it all in the solicitors hands”.

20 This letter clearly disclosed an intention on the part of the prisoner to kill himself. The person referred to in the second last paragraph of the letter as “he” or “him” was Mr de Groote, who the prisoner believed had been stealing from the business and mistreating his mother. The words “I had to get rid of him” disclosed an intention on the part of the prisoner at the time he wrote the letter of getting rid of Mr de Groote by killing him.

21 On the following day 29 September 2003 Mrs Theresa Hantis found the sum of $5,000 in cash in her house.

22 After he left the Club on 28 September 2003, the prisoner drove to the house at Callala Bay, where Mr de Groote and his mother lived. The journey would have taken him about twenty minutes. The prisoner took with him in his vehicle a rifle out of the collection of firearms he kept in the safe in the extension to the garage at his home and he also took ammunition consisting of four cartridges. The prisoner took as many as four cartridges, so as to be sure to have sufficient ammunition to kill not only himself but also Mr de Groote.

23 In the absence of evidence from the prisoner (apart from some history later given to a psychiatrist Dr Westmore, which is recorded in reports by Dr Westmore), Mrs Lillian Hantis and, of course, Mr de Groote, it is not possible to make detailed findings of fact about what happened at the house at Callala Bay, after the prisoner had arrived at the house. I am, however, satisfied that the following facts have been established to the requisite standard.

24 After arriving at the house the prisoner did not immediately shoot either Mr de Groote or himself. A cigarette butt found in an ashtray in the kitchen of the house and a cigarette butt found on the back veranda or porch of the house were, according to DNA evidence, smoked by the prisoner.

25 Not long after he arrived at the house the prisoner attempted to fire the rifle but the rifle misfired. It is unclear in what circumstances the prisoner made this unsuccessful attempt to fire the rifle. An ejected misfired cartridge was later found by police inside the house.

26 The prisoner fired the rifle again, this time successfully. The bullet which was discharged entered the palm of Mr de Groote’s left hand, fractured a bone in the hand, exited the back of the hand, entered Mr de Groote’s left anterior chest wall, passed through his lungs, aorta and all four chambers of his heart and exited from the right side of his back. After passing through Mr de Groote’s body, the bullet ricocheted off a number of objects in the lounge room of the house and was later found by police close to where Mr de Groote’s body was found, lying between the kitchen and the lounge room of the house.

27 After shooting Mr de Groote, the prisoner walked outside the house on to the back veranda or porch. The prisoner operated the bolt of the rifle, thereby ejecting the fired cartridge case, which was later found by police. The action of operating the bolt brought up another cartridge into the chamber of the rifle. The prisoner then shot himself in the mouth, while holding the rifle with the muzzle inside or close to his mouth. The prisoner fell, seriously injured, to the floor of the veranda. Police later found the fired cartridge case inside the rifle.

28 I am satisfied that the prisoner shot himself on the back veranda of the house, yet police found the rifle inside the house close to the body of Mr de Groote. I accept the submission made by the Crown prosecutor at the trial that Mrs Lillian Hantis, who had been outside the house and witnessed her son shooting himself, picked up the rifle and put it inside the house.

29 A number of neighbours heard the sound of gunshots and went to the house. They saw the prisoner lying on the back veranda of the house, Mr de Groote lying on the floor between the kitchen and the lounge room of the house and the rifle lying near Mr de Groote’s feet. Mrs Lily Hantis, understandably, was distressed to the point of being hysterical.

30 Mr de Groote died immediately from the gunshot wound to his body. The prisoner, on the other hand, did not succeed in killing himself. It may be that in the act of shooting himself he was distracted by cries from his mother.

31 At the trial manslaughter was left to the jury on two bases, namely:-

1. That the prisoner was otherwise guilty of murder but his liability was reduced to liability for manslaughter by reason of substantial impairment by abnormality of mind pursuant to s 23A of the Crimes Act .

2. That the prisoner was not guilty of murder but was guilty of manslaughter by unlawful and dangerous act.

32 As regards the first basis Dr Westmore gave evidence at the trial that he had seen and assessed the prisoner on a number of occasions after the shooting and had formed the opinion that at the time of the shooting the prisoner had been depressed and suicidal and had been suffering from an abnormality of mind, namely depression, which had substantially impaired the prisoner’s capacity to understand events and to judge whether his actions were right or wrong and might have affected his capacity to control himself.

33 In accordance with the principles stated by the Court of Criminal Appeal in R v Isaacs (1997) 90 A Crim R 587, it is part of my function as the sentencing judge to determine on what basis the prisoner is to be regarded as guilty of manslaughter and I am to discharge that function by myself determining on what basis the prisoner is guilty of manslaughter and not by endeavouring to determine on what basis the jury found the prisoner guilty of manslaughter.

34 At the trial it was part of the defence case that the jury should not be satisfied beyond reasonable doubt that the prisoner had had the intent required for murder. This part of the defence case was based on parts of the history given by the prisoner to Dr Westmore and on evidence that the bullet which killed Mr de Groote had first struck his hand fracturing a bone in his hand, and not his torso, and evidence from a ballistics expert that the bullet, in passing through Mr de Groote’s hand and striking the bone, had been caused to deviate from its original path, so that there might be some doubt whether the prisoner had aimed at Mr de Groote’s body.

35 I am satisfied beyond reasonable doubt that Mr de Groote’s hand was close, or fairly close, to his body, at the time it was struck by the bullet and that the deviation by the bullet from its original path, between passing through Mr de Groote’s hand and entering his chest, was not substantial. I am also satisfied beyond reasonable doubt that the prisoner was experienced and competent in the use of firearms and that the expression in the letter written by the prisoner “I had to get rid of him” disclosed an intention on the part of the prisoner to get rid of Mr de Groote by killing him. I conclude that I am satisfied beyond reasonable doubt that at the time of firing the bullet which struck Mr de Groote the prisoner had the intention of killing Mr de Groote.

36 I also consider that I should accept the evidence given by Dr Westmore at the trial that at the time of the shooting the prisoner’s capacity was substantially impaired within s 23A(1)(a) of the Crimes Act.

37 Accordingly, I am satisfied that the prisoner should be regarded as guilty of manslaughter on the first basis left to the jury, namely that he was otherwise guilty of murder but his liability was reduced to liability for manslaughter by reason of substantial impairment by abnormality of mind pursuant to s 23A of the Crimes Act. In the proceedings on sentence neither counsel made any submission to the contrary of this conclusion.

38 Some of the more salient facts of the offence of manslaughter can be summarised as follows. The prisoner killed the victim by shooting him, with the intention of killing the victim. The offence was premeditated, to the extent that the prisoner had formed the intention of killing the victim by 3.40 on the afternoon of 28 September 2003. The prisoner travelled to the victim’s home, taking a rifle and ammunition. The prisoner believed that the victim had been stealing from the prisoner’s business and had been mistreating the prisoner’s mother. The prisoner intended to commit suicide himself after he had killed the victim and the prisoner made a serious attempt to kill himself. At the time of killing the victim the prisoner’s capacity to understand events, his capacity to judge whether his actions were right or wrong and his capacity to control himself were all substantially impaired by an abnormality of mind, the impairment being so substantial as to warrant liability for murder being reduced to manslaughter.

39 The facts of the offence under the Firearms Act can be briefly stated. Police who searched the prisoner’s home on the night of 28 September 2003 found eleven firearms, for one of which the prisoner did not hold a licence or a permit. He held a licence or a permit for all of the other firearms. There is no suggestion of any failure by the prisoner to keep safely the firearms in his possession.

40 I will now summarise some events taking place after the shooting.

41 On the evening of 28 September 2003 the prisoner was taken to the Shoalhaven Hospital. At the Shoalhaven Hospital a large flap of his cheek that had been separated from other facial tissues by the gunshot was sutured, he was intubated and ventilated, he was sedated and antibiotics were administered.

42 The prisoner was transferred by helicopter to the Prince of Wales Hospital in Sydney. X-rays and a CT scan performed at the Hospital showed multiple fractures to the left side of his face. On 29 September 2003 an operation was performed on the prisoner, involving a transverse tracheotomy, a repair of a full thickness laceration of his face and the debridement and closure of the left maxilla-facial gunshot wound.

43 The prisoner was managed in the intensive care unit at the Prince of Wales Hospital between 29 September and 3 October. He was transferred to a ward on 3 October. On 10 October 2003 a further operation was performed, involving open reduction and internal fixation of a fracture of the angle of the left mandible. The prisoner commenced mobilisation on 14 October. On 21 November he was discharged from the Prince of Wales Hospital and admitted to a ward in the hospital at the Long Bay Correctional Centre.

44 At present the prisoner, as a result of the gunshot injury, is unable to close his left eye. He is on a waiting list for a canthopexy, that is surgery which would enable him to close his eye. He has other continuing impairments, as a result of the gunshot injury, to his teeth, sinuses and tongue.

45 The prisoner is also on a waiting list for radiotherapy to a lesion on his head. It is unclear whether the lesion has any connection with the events of 28 September 2003.

46 Copies of the following reports by Dr Westmore were admitted into evidence in the proceedings on sentence:-

1. Report of 8 December 2003 (examination of the prisoner on 3 December 2003)

2. Report of 11 August 2004 (examination of the prisoner on 6 August 2004.

3. Report of 15 November 2004 (examination of the prisoner on 2 November 2004).

4. Report of 25 February 2005 (examination of the prisoner on 23 February 2005).

5. Report of 15 April 2005 (examination of the prisoner on 9 April 2005).

6. Report of 30 May 2005 (no further examination of the prisoner).

47 In his report of 11 August 2004 Dr Westmore said:-

“In my report of 8 December 2003 I indicated that Mr Hantis suffered from a depressive illness. His history and current presentation confirmed that diagnosis and I note that he is receiving increasing doses of antidepressants. He has a major depressive illness and I also note the significant disturbances in his biological functions. These include poor sleep initiation, anergia, severe weight loss and ongoing suicidal thoughts”.
. . .
“In relation to the availability of psychiatric defence, his history is that he was depressed and suicidal at the time of the incident…. He would have available to him the defence of substantial impairment. He was suffering from an abnormality of mind, specifically depression, which would have substantially impacted on his capacity to understand events in a rational and reasonable way and his depression would have prevented him from being able to consider, again in a rational way, whether his actions were right or wrong. His ability to control himself may also have been affected by the severity and nature of the depression and the suicidal thoughts he describes he was suffering from at the time of the homicide.
He requires ongoing psychiatric support and supervision and continuing treatment with antidepressants. He remains a suicide risk”.

48 In subsequent reports Dr Westmore did not depart from these opinions.

49 In his report of 25 February 2005 Dr Westmore said:-

“On reflection this man probably suffers a degree of post traumatic stress disorder as a result of his actions. Perpetrators of violent acts, as well as victims, can experience this condition and that disorder, along with his depression, are the major psychiatric problems facing Mr Hantis at this time”.

50 In his report of 15 April 2005 Dr Westmore related an account given to him by the prisoner about neurological treatment the prisoner had received. In his report Dr Westmore added:-

“I saw a typed report dated 8 April 2005 from the Institute of Neurological Sciences. This document indicates that Mr Hantis has been diagnosed with an A-V (arterio-venous) malformation. This vascular abnormality is affecting the right posterioparietal region of the brain. His initial presenting complaint was that he had suffered a sudden onset of increasing left side weakness, slurred speech and parasthesia of the left side of his face. The differential diagnosis for the identified abnormality was that he may have a high grade malignant lesion. The treatment recommended was for Mr Hantis to undergo stereotactic radio-surgery, this to be completed as an outpatient”.

51 When he gave evidence in the trial Dr Westmore was asked to express an opinion about the level or degree of the prisoner’s depression at the time of the shooting and he replied:-

“Well, it’s a retrospective opinion, because I didn’t examine him at the time, I’m relying on the limited history he could give about it, but if one draws some link between a depressed mood and ultimately his self-harming behaviour, you would have to say it was a severe depression”.

52 In evidence given in cross-examination by the Crown at the trial Dr Westmore said that his conclusions that the prisoner was suffering from severe depression at the time of the shooting and that the prisoner’s depression had not arisen at some time after the shooting, were based on the history the prisoner had given him, which was corroborated to some extent by the prisoner’s wife, and by the prisoner’s own act of self-harm in shooting himself. The contents of the letter written by the prisoner on 28 September 2003, which Dr Westmore described as being “morbid”, supported the conclusion that the prisoner was severely depressed at the time of the shooting. When asked whether any depressive illness the prisoner was suffering from could have developed after the shooting, Dr Westmore said that that would be a possible view, but only if the history given by the prisoner was dismissed and there was some alternative explanation for the prisoner’s attempt to commit suicide.

53 Dr Westmore gave further evidence in cross-examination at the trial:-

“A. Well the principal diagnosis is that of a depressive illness. I think he has had a major depression. In the alternative we would describe it as being a severe adjustment disorder. Adjustment disorders are reactive depressions and they tend to be more functional or variable. But they can also be quite significant in terms of their impact on a person’s life and their psychology. Major depressions tend to be associated with disturbances in sleep patterns, appetite, weight and libido. Both conditions can be associated with self harm. Major depressions are probably more genetic in origin, but not necessarily so. I thought he had a major depression which probably had been in place for several weeks, possibly months prior to the homicide/suicide and that it extended after that, but because of a lot of other reasons.
Q. Having regard to a number of things in particular the limited history, is it possible that you may in fact be wrong about that, that he didn’t have a depressive illness prior to the incidents?
A. Well anything else is possible, but the history would support the proposition, although it’s limited. And again I’m accepting this aspect of his history. If he was suicidal two or three weeks prior to – his wife described him as being ‘like a bear with a sore toe’. If we accept when he says, ‘I felt so hopeless I don’t know why. I couldn’t see an end to whatever was going on in my head’. And writes a note which says, ‘it’s because I have failed you all’. And ‘with me gone you should be able to restart. Curse me if you must as I’ve cursed myself’. That’s quite a morbid content really. And I think that, limited as it is, combined with the ultimate violent act is strongly supportive of depression”.
. . .
“Q. It does not mean because of that he wasn’t aware of the right or wrong of his actions?
A. I think when that’s being considered other things need to be considered as well. This man, as far as I’m aware, doesn’t have a history of behaviour in such a way before. This is an extreme uncharacteristic act on behalf of this man. And if you look at the reasons why he states he took a life, may be, or shot somebody else, it’s because he was stealing from a shop and perhaps an aggression towards his mother. Psychologically people react in other ways to those sorts of stressors, rather than shooting somebody dead. It would suggest to me that this man acted so out of character in such an extreme way, against what might be moderate provocation, that such extreme behaviour suggests to me his capacity to think about what he was doing was impaired”.

54 In his final report of 30 May 2005, which was prepared for the proceedings on sentence, Dr Westmore said:-

“As you are aware I have examined Mr Hantis now on a number of occasions and have provided a number of reports about him. I expressed the opinion that Mr Hantis was psychiatrically unwell at the time of the incident and on each occasion I examined him following the incident he demonstrated evidence of extreme emotional lability and depression of mood.
As I understand it, Mr Hantis does not have a prior history of aggression and he does not have an antisocial personality disorder. Episodic alcohol abuse is identified in his background, that probably occurred in part as a result of him attempting to ‘self medicate’ and alleviate his mood disorder symptoms.
The matters leading up to the death of Mr Hantis’ mother’s partner occurred as a result of many factors. Mr Hantis was depressed, he had concerns about the way the victim was treating his mother and possibly concerns about the victim’s involvement in some financial matters.
You have asked me to consider the likelihood of Mr Hantis reoffending in a violent manner.
Because of the highly specific nature of the events leading up to the matters now before the court, it would be my view that Mr Hantis’ risks of acting violently towards another person are very low, if they exist at all. He is at far greater risk of self harming.
Mr Hantis requires regular, consistent psychiatric care both at this time and on his release to the community. He has a depressive illness which requires treatment with antidepressants and psychotherapy. He may need periods of hospitalisation.
Regarding the intracranial lesion, my understanding of that is that he has an AV malformation. This is an abnormal connection between an artery and a vein. These abnormalities often occur congenitally. They may also result from trauma but the opinion of a neurosurgeon should be sought regarding this issue.
I understand from the oncology radiologist, Dr Smee, that these lesions have a five percent per year risk of haemorrhaging. Mr Hantis has already had such a haemorrhage. The lesion will need to be treated and that can occur surgically or by radiotherapy.
I understand that Mr Hantis has elected to have his AV malformation treated with radiotherapy, as surgery can result in some neurological deficits. This is a matter which should be treated with some urgency in my view.
As noted above, Mr Hantis is a suicide risk, he will need to be monitored carefully and considerately by psychiatric services on his release to the community. He is fortunate to have the ongoing support of his family and I presume friends as well.
Mr Hantis is a man with a number of personality strengths and attributes and these in addition to his community based supports, will no doubt assist him in his long term rehabilitation”.

55 In evidence in the proceedings on sentence Dr Westmore said that the prisoner had not in the past received, and would be unlikely to receive while he was a prisoner, the kind of psychiatric treatment and supervision he should be receiving.

56 I accept the opinions expressed by Dr Westmore which I have quoted or summarised. No countervailing psychiatric evidence was adduced by the Crown in either the trial or the proceedings on sentence. I take into account inter alia that the prisoner at the time of the shooting suffered and continues to suffer from severe depression, that the chances of him acting violently towards another person are very low but there is a much greater risk of the prisoner harming himself, that the prisoner continues to suffer physical impairments from his shooting himself and, whether or not it is connected with the shooting, the prisoner suffers from an arterio-venous malformation which has required treatment and will require further treatment.

57 I will now note some further subjective circumstances of the prisoner.

58 The prisoner has no previous criminal history and I am satisfied that he is, in general, not a violent person.

59 Before the shooting the prisoner took part in community activities. He had been the president of a local pistol club and had been the president of the local Boy Scout Group.

60 I accept that the prisoner accepts responsibility for having killed Mr de Groote and is deeply remorseful.

61 The prisoner’s wife has visited him every week while he has been in custody and gave evidence both in the trial and in the proceedings on sentence. She is strongly supportive of the prisoner. The prisoner’s two children attended court during the trial and the proceedings on sentence.

62 The maximum sentence for the crime of manslaughter is imprisonment for twenty-five years.

63 In sentencing the prisoner I take into account the relevant provisions of the Crimes (Sentencing Procedure) Act, including s 3A and s 21A. Because of his mental state at the time of committing the offence the prisoner is a less appropriate vehicle for fulfilling the sentencing purpose of general deterrence. I also accept that that there is little need for personal deterrence.

64 The Crown accepted that the sentence I impose should commence on 28 September 2003, even though the prisoner was not arrested and did not pass into the custody of the Department of Correctional Services until some time later. From the evening of 28 September 2003 the prisoner was under police guard.

65 It was also accepted by the Crown that I should find special circumstances within s 44 of the Crimes (Sentencing Procedure) Act. A sufficient reason for such a finding would be the prisoner’s need for psychiatric supervision and treatment of a kind and intensity which he is unlikely to be able to receive while he remains in custody.

66 I was referred by the Crown prosecutor to the well known passage in the judgment of Gleeson CJ in R v Blacklidge [NSWCCA 12 December 1995 unreported], which was a case of manslaughter on the ground of diminished responsibility, which was a predecessor of substantial impairment by abnormality of mind. 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 sentencing 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”.

67 Both the Crown prosecutor and counsel for the prisoner, while accepting that each case of manslaughter depends very much on its own facts, referred me to a number of sentencing decisions for offences of manslaughter on the basis of substantial impairment or diminished responsibility. In the cases to which I was referred the total terms of the sentences imposed ranged from very low terms (and even a recognisance) to terms of about thirteen years (if the occasional case in which a much more severe sentence was imposed is disregarded). In all or virtually all of the sentences the minimum term or non-parole period was less than three quarters of the total term.

68 Taking into account all the objective facts and all the subjective circumstances and having regard to the purposes of sentencing, I have concluded that the following sentences should be imposed.

69 Jacques Louis Guy Hantis:-

70 For the offence of manslaughter I sentence you to a non-parole period of four years commencing on 28 September 2003 and expiring on 27 September 2007 with a balance of the term of four years commencing on 28 September 2007 and expiring on 27 September 2011.

71 For the offence of possessing a firearm without being authorised to do so I sentence you to a fixed term of imprisonment of six months commencing on 28 September 2003 and expiring on 27 March 2004.

72 The earliest date on which you will be eligible for release on parole will be 27 September 2007.

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