Regina v Lynch

[2002] NSWSC 1140

CITATION:	Regina v Lynch [2002] NSWSC 1140
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	SC 70030/02
HEARING DATE(S):	22/07/02, 23/07/022, 24/07/02, 25/07/02, 18/11/02,
JUDGMENT DATE:	20 November 2002
PARTIES :	Regina v Kevin James Lynch
JUDGMENT OF:	Whealy J at 1

COUNSEL :	W.Creasey - Crown D. Stewart - Offender
SOLICITORS:	Office of the Solicitor for Public Prosecutions - Crown Ross Hill & Associates - Chinatown, Sydney
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
CASES CITED:	Alexander (1994) 78 A Crim R 141 at 144 Tumanako 64 A Crim R 149 at 155 Pearce v Regina 194 (1998) CLR610 at 662-664 Larsen (1989) 44 A Crim R 121 at 127 Hill (1981) 3 A Crim R 397 at 402 per Street CJ MacDonald NSWCCA 12 December 1985 R v Previtera (1997) 94 A Crim R 76 Bollen v R (1998) 99 A Crim R 510 Simpson (2001) NSWCCA 534
DECISION:	Kevin James Lynch, in relation to the charge of malicious woundign with intent I sentence you to a head term of imprisonment of 4 years and 3 months. The sentecne is to commence on 12 August 2001. I set a non-parole period of 3 years and 2 months to expire on 11 October 2004. The date you would be eligible for parole but for the sentence I am about to impose in relation to the manslaughter conviction is 11 October 2004.; In relation to the conviction for manslaughter I sentence you to a head term of 7 years and 8 months imprisonment. The sentence is to date from 12 August 2002. I set a non-parole period of 5 years and 9 months commencing on 12 August 2002 and expiring on 11 May 2008. The prisoner will be eligible to be released to parole on 11 May 2008.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL LAW DIVISION

WHEALY J

20 November 2002

70030/02 - REGINA v Kevin James LYNCH

SENTENCE

1 HIS HONOUR: On the morning of the 12 August 2001, Dr Lyons, the Director of Forensic Medicine for the Hunter region was called by police to a property at 48 Frame Drive, Abermain. There he found the deceased, Jason Phelps. He was positioned on a bed in a small enclosed veranda in the front of the house. Dr Lyons made a preliminary examination and later carried out a post-mortem on the body on the 14 August 2001.

2 At post-mortem, Dr Lyons found that the deceased had died as a consequence of a stab wound in the left chest area directly above and to the outside of the left nipple. The wound was about 19mm in length and somewhere between 100-140 mm in depth. He thought the wound was consistent with a knife wound. He in fact inspected two knife blades that were found inside the premises. It was his opinion that the knife had passed through the skin, the fat and muscles of the chest wall and passed into the chest cavity between the two ribs. It then passed into the side wall of the heart, that is it went into the left ventricle and pierced the wall of the heart. As a consequence of that injury there would have been a large amount of blood draining out of the heart into the chest cavity. He thought the victim would have lost consciousness within a relatively short space of time, perhaps a minute or two, and died subsequently.

3 There was a second wound in the upper left abdominal area where a knife had passed through the skin of the stomach, the underlying muscles of the stomach wall and pierced part of the large bowel.

4 At the time of the fatal wounding, the deceased had been on the bed in that room with Mrs Elizabeth Lynch. She had been taken to hospital before Dr Lyons arrived. She was also wounded in the attack but later recovered. It appears she was stabbed in the chest and as well she cut her hand and received a cut on her left knee in the fracas.

5 The prisoner, Kevin Lynch was charged on an indictment containing two counts. The first was that he did on 12 August 2001 murder Jason Phelps at Abermain. At the commencement of the trial, on 22 July 2002, he pleaded not guilty to this charge but guilty to manslaughter. At that time, the Crown did not accept the plea. In relation to the second count, namely that on 12 August 2001, he did maliciously wound Elizabeth Lynch with intent to do grievous bodily harm to her, the prisoner pleaded guilty. That matter has remained in abeyance while the trial proceeded.

6 On Friday 25 July 2002 the prisoner was re-arraigned and once again pleaded not guilty to the murder charge but guilty of manslaughter in relation to the death of Jason Phelps. On this occasion, the Crown accepted the plea in satisfaction of the indictment. The prisoner was accordingly convicted of manslaughter on that day and the proceedings were stood over until 18 November 2002 for submissions on sentence.

7 Following the conclusion of submissions on sentence the prisoner was further remanded in custody until today for the passing of sentence.

8 The maximum penalty for the crime of manslaughter is 25 years. The maximum penalty for the charge in the second count of maliciously wound with intent to do grievous bodily harm is 25 years.

9 The partial defence which had been pursued on the prisoner’s behalf during the trial was that provided in the s 23 (1) of the Crimes Act 1900 as amended. This was that the act causing death was an act done under provocation. It is clear that this was the basis on which the plea of guilty to the charge was proffered and it was the basis on which it was accepted by the Crown.

10 It is necessary for me now to state the facts I have found. May I say immediately that I am perfectly satisfied beyond reasonable doubt that the killing of Jason Phelps was an act done under provocation and in circumstances where the prisoner had lost his self-control and was induced to that state by the conduct of the deceased towards him.

11 The genesis of the tragic situation which developed on 12 August 2001 lay in the troubled relationship between the prisoner and his wife, Elizabeth Lynch. They had been living together in a de facto relationship as man and wife since about 1991. hey were in fact legally married in 1998. There were three children of the relationship aged at the present time approximately 10, 5, and 3.

12 Elizabeth Lynch was of Croatian extraction. Her mother Marija Serbedjija arrived in Australia in about 1950. She and her husband had a number of children, one of them being Elizabeth Lynch. The parents bought the property at Frame Drive, Abermain about 30 years ago and later moved in to an old dwelling on that property. It was there that Elizabeth Lynch met Kevin Lynch who later moved into the property with her.

13 In more recent years a new house had been built on the property so that, somewhat unusually, there were two houses on the property, a new and an old. The prisoner, his wife and his wife’s mother together with the children moved in to the new house in about the beginning of about 2001 leaving the old house unoccupied.

14 By that time the marriage between the prisoner and his wife was virtually at an end. Although they continued to share the house with their children they slept in separate rooms and had done so for a considerable period of time. By August 2001 it seemed the only thing that kept them living under the same roof was the fact that they had not come to a final arrangement in relation to the disposal of the marriage property. It seemed to have been the mutual intention that once those matters were resolved the prisoner would leave for good although of course he intended to maintain his relationship with the children.

15 Elizabeth Lynch regarded herself free to have relationships with other men if she wished to do so in the period of time prior to August 2001. From her perspective, she and her husband were “in a separation ready for divorce.” In fact, she entered into a relationship with a local man, one Peter Masterman. She stayed at his home on alternate weekends while Kevin Lynch looked after the children. It seems that this affair caused the prisoner humiliation and distress. From his perspective, although he accepted that the relationship was over, he did not want his wife to have affairs with other men while he was still living in the house. This may have been partly because of his own humiliation, but there was also concern for the children and their reaction to such a relationship.

16 Elizabeth Lynch had known the deceased for about 5 years prior to August 2001. A few weeks before the death of the deceased, she met him again at a party at his mother’s place. The mother’s name was Magdalena Brown. Elizabeth Lynch was also friendly with the deceased’s sister, whose name was Christine Henry. She stayed at this party for 2 nights and on the second night she slept with the deceased, that is she had a sexual relationship with him.

17 Elizabeth Lynch insisted that there was only this one sexual encounter between herself and the deceased. She maintained her friendship with him after this encounter however but she did not sleep with him a second time. It appears that the prisoner shortly afterwards confronted Elizabeth Lynch with the accusation that she had slept with the deceased. She denied this but later it appears that the prisoner was informed of the sexual encounter by another person. Again the prisoner was humiliated and distressed by this incident; again he took the attitude that he did not wish his wife to be in a physical relationship with another man until the house was sold and they had each gone their separate ways.

18 There was a subsequent party at Magdalena Brown’s place. On this occasion, after the consumption of a fair amount of alcohol, Elizabeth Lynch ended up in the same bed as the deceased and also her son Caleb. The prisoner arrived at the house and demanded to take his son home with him. It seems fairly clear that he suspected that a further sexual encounter was likely to take place between his wife and the deceased on this occasion although Elizabeth Lynch maintained that this simply did not happen. She stayed the night with the deceased and his family after the prisoner had left.

19 On 11 August 2001 a barbecue was organised at 48 Frame Drive, Abermain. Those who attended were the deceased, his mother Magdalena Brown, his sister Christine Henry and a mutual friend Caren Wells. The prisoner had gone into town to get some provisions for the barbecue at the time the guests were being invited by Elizabeth Lynch and Caren Wells. When he returned from his shopping task the prisoner encountered the guests who had arrived including the deceased. Also present at the barbecue were a number of children and Elizabeth Lynch’s mother.

20 On the surface, it seemed as if all the participants were having a pleasant and carefree time. There were however obvious undertones of stress centering upon the prisoner’s reactions to the relationship on that day between Elizabeth Lynch and the deceased. For example, during the afternoon the prisoner had a conversation with Mrs Brown. The prisoner told Mrs Brown that he was concerned that there was “something going on” between the deceased and his wife. Mrs Brown denied that there had been any occasion where the deceased had slept with Elizabeth Lynch. She tried to reassure him and tried to calm him down. It seems that during the day the prisoner spoke directly on the topic to Jason Phelps himself. He asked him not to have a relationship with Elizabeth, until at least the separation was complete. It appears he obtained no assurance from the deceased in this regard. It is necessary to say that a considerable amount of alcohol was being consumed by most of the participants at the barbecue. As well, at about 4 o’clock a decision was made to obtain some more beer and cigarettes from the local hotel. Those who went were the deceased, Christine Henry, Elizabeth Lynch and Caren Wells. While at the hotel, Elizabeth Lynch and the deceased had a drink together and played pool. The prisoner was not invited to come to Abermain with this group. It must have been apparent to him however as the afternoon progressed into the evening that his wife and the deceased were getting on quite well.

21 After dark, the party decided to continue their drinking at the Criterion Hotel at Weston. This time Kevin Lynch insisted on coming with the others and he in fact drove the car down to the hotel.

22 It is quite clear that while at the hotel Elizabeth Lynch and the deceased began to flirt openly with one another. It was noticed by Magdalena Brown, by Caren Wells and by Christine Henry. All three were uncomfortable with what they observed particularly the reaction it was having on the prisoner. Indeed, Mrs Brown said she actually spoke to the deceased and said that she was worried and that Elizabeth Lynch would be making Kevin jealous by what she was doing. According to her, the deceased defended his part in the flirtatious conduct by saying “well I’m not doing anything.” Mrs Brown said that for her son it was “like water off a duck’s back.” He seemed quite happy with the role he was playing.

23 It is quite apparent that the behaviour of the deceased and Elizabeth Lynch in the bar, no doubt coupled with that which had happened earlier at the barbecue, brought the prisoner to a state of anger and resentment. In fact the prisoner again spoke to the deceased seeking an assurance as he had done earlier in the day. Again, no such assurance was forthcoming. At some stage the prisoner walked over to Elizabeth Lynch and had a heated conversation with her. He then picked up four glasses of beer which were on the bar counter and poured each of them over her head in turn. Elizabeth Lynch was completely soaked in beer as a consequence of these actions.

24 Other people in the hotel including the hotel staff remonstrated with the prisoner. He was told to leave. He very quickly left the establishment and in fact shortly afterwards drove back to 48 Frame Drive, Abermain.

25 The other members of the party stayed at the Criterion Hotel at Weston and continued drinking. Despite the significant amounts of alcohol that had been consumed during the afternoon and evening, when they left they purchased another carton of stubbies to take with them. The deceased had rung his brother in law Alan Henry and asked him to come and collect them from the hotel. Alan Henry said he had received a phone call at about 1.45 am on 12 August 2001 asking for a lift home. He went to the hotel and he picked up Elizabeth Lynch, the deceased, Magdalena Brown, Christine Henry and Caren Wells. He drove them back to 48 Frame Drive. In fact at Elizabeth Lynch’s suggestion, he drove them up to the old house on the property. They arrived there shortly after 2 am. The old house was in darkness and it was necessary to reconnect the electrical supply at the fuse box before the party could recommence inside. A few more beers were consumed and at about half past 2 in the morning, Alan Henry left. He offered to take the deceased with him but the deceased indicated he wished to stay for the evening.

26 Shortly afterwards, sleeping arrangements were made in the old house. It is not clear at whose instigation but it certainly eventuated that after a time Elizabeth Lynch and the deceased decided to share the bed on the veranda. The light in the main room was left on. This threw enough light to provide some illumination of the fact that the deceased and Elizabeth Lynch were to be sharing the veranda bed.

27 To return now to an earlier part of the evening, when the prisoner had come back to the Abermain property after leaving the Criterion Hotel, he drove up to the new house. Mrs Lynch’s mother said that she was sitting inside the kitchen when he arrived. He told her that he had poured beer over Elizabeth and that he had been insulted by the deceased. She said that in the kitchen while she spoke to him the prisoner was crying as he described to her what had happened back in the hotel at Weston.

28 At some stage perhaps a few hours later the lights had come on in the old house. It must have been then apparent to the prisoner that those who had been at the hotel had now returned home and had in fact driven up to the old house. He asked Mrs Lynch’s mother about the keys to the old house. She told him that her daughter had them. Much earlier in the day Elizabeth Lynch had waved the keys in front of the prisoner and told him they were going to have a party to which he would not be invited. The prisoner was crying again in the kitchen when Mrs Lynch’s mother told him that Elizabeth had the keys. He said that he was going over to the old house and Mrs Serbedjija warned him not to touch her daughter and not to make any trouble. She described the prisoner as crying continually at this time and she said that he took a knife from the kitchen. She thought he put it back when she told him not to take it with him. In the event, the prisoner left the house although it is not clear whether Mrs Lynch’s mother saw him leave. Nor is it clear whether she saw that he was carrying a knife or knives when he left the house.

29 The fact is he was armed with two knives and it was clear that he was by now in a state of great distress when he made his way over to the old house. It must have appeared to him that his worst fears had been realised because the lighting in the house would have revealed to him as he endeavoured to gain entry that the deceased and his wife were together in the one room. In his record of interview he said that he could see Jason starting to get undressed and that Elizabeth Lynch was already in the bed. He walked further around the corner of the house and managed to get through a window as the back door was locked. This window gave access to the lounge room and from there to the veranda room.

30 It is difficult to know with absolute certainty what next happened. I am satisfied beyond reasonable doubt however that the prisoner had completely lost his self control by this stage as a consequence of the events of the day and those other events involving his wife and the deceased which had occurred at earlier points of time. I am satisfied beyond reasonable doubt that he had an intention to use the knife or knives to do grievous bodily harm to both the deceased and Elizabeth Lynch. I am not satisfied beyond reasonable doubt however that he had formed an intention to kill either of them at that stage. There is some evidence to support the more serious finding but overall I am not satisfied to the requisite standard that the prisoner ever formed an intention to kill either the deceased or Elizabeth Lynch.

31 In that state of anger, distress, humiliation, jealously and the like, the prisoner encountered the deceased and Elizabeth Lynch in the bedroom. I am satisfied that he was abusive towards them and that the deceased scrambled to the end of the bed in order to repel any attack. The prisoner struck the deceased with the knife and when Elizabeth Lynch attempted to intervene, struck her as well. It was in the course of this striking that he administered the fatal wound to the deceased and the second wound to his stomach. Similarly, the injuries sustained by Elizabeth Lynch were caused by the prisoner’s use of the knife in the struggle.

32 Christine Henry came from the next room and joined in the fracas in an endeavour to subdue the prisoner. So did her mother Magdalena Brown. She in fact hit him several times over the head with a hatstand and in fact caused him quite a severe injury. At that point of time the prisoner desisted his attack, left the house and ran back to the new home. I n the meantime, the deceased had lapsed into unconsciousness and was in a very bad state indeed. There was a general air of hysteria throughout the whole house as it was apparent that the deceased had been very seriously wounded.

33 Shortly afterwards, Elizabeth Lynch and Christine Henry ran over to the new house with a view to making an emergency telephone call for assistance. Kevin Lynch was sitting in the kitchen with blood all over his shirt. The children were by this stage awake from the commotion. It appears that the prisoner had in fact called the emergency services himself and asked for the ambulance to attend. He then left the kitchen and drove away from his property in his motor vehicle. Shortly afterwards the ambulance arrived as did the police. A short time later Elizabeth Lynch was taken by ambulance to hospital.

34 The prisoner voluntarily returned to the property in his motor vehicle and spoke to the police officers who had arrived. The prisoner was later arrested and conveyed to hospital for treatment. Later in the day he took part in a video walk through and provided general assistance to the police in relation to their inquiries. He has remained in custody since the time of his arrest on 12 August 2001.

35 I stated earlier in these remarks on sentence that I was satisfied beyond reasonable doubt that the killing of Jason Phelps was an act done under provocation and in circumstances where the prisoner had lost his self control and was induced to that state by the conduct of the deceased towards him. In reaching that conclusion and generally in relation to the issue of provocation I have had regard to the three considerations relevant to this issue in provocation/manslaughter cases identified by Hunt CJ at CL in Alexander (1994) 78 A Crim R 141 at 144. These matters are:

(1) the degree of provocation offered (or alternatively the extent of the loss of self control suffered), which when great has the tendency of reducing the objective gravity of the offence.

(2) The time between the provocation and the loss of self control, which when short also has the tendency of reducing the objective gravity of the offence; and

(3) the degree of violence or aggression displayed by the prisoner, which when excessive has the tendency of increasing the objective gravity of the offence.

36 The degree of provocation in the present matter was quite high. Correspondingly, the prisoner’s loss of self control was quite severe. The provocative conduct which occurred on 11 and 12 August 2001 must itself be seen against the background of the strained and difficult relationship between the prisoner and his wife Elizabeth Lynch. It must also be seen against the background that he was clearly suffering from depression at the time and receiving treatment for this condition. The depression was plainly related to the difficulties of his family relationship. It is also necessary to take into account Elizabeth Lynch’s resolve to have a relationship with other men if she so chose notwithstanding that she was still living under the same roof as the prisoner.

37 Against this background one then comes to the behaviour of the deceased on the day in question. It is quite apparent that Elizabeth Lynch’s behaviour was deliberate and provocative. Although in the main the relevant conduct to be considered is that of the deceased when considering the partial defence of provocation to murder, the law permits an examination of the conduct of another person if that conduct occurs in the presence of the deceased and emanates from a person so closely associated with the deceased that it is reasonable for the jury to attribute the conduct of that person to the deceased (Tumanako 64 A Crim R 149 at 155). The events which occurred on 11 and 12 August 2001 were words and actions engaged in by Elizabeth Lynch and the deceased, sometimes individually and sometimes acting together in concert. While Elizabeth Lynch’s actions and words may have been motivated by resentment, anger and annoyance deliberately directed at her husband, there was no suggestion that Jason Phelps set out deliberately to provoke the prisoner. From all accounts he was a pleasant and genial young man who probably had little idea of the force or depth of the emotional torrent in which he was being unwittingly submerged. He was probably flattered by the attentions of Elizabeth Lynch and saw little harm in his own conduct.

38 The fact is however that not only Elizabeth Lynch’s conduct but that of the deceased, particularly when they were together, was clearly having a significant effect on the prisoner. This was noticed by others who were present at the party and at the hotel. His distress was manifested by the aggressive eruption at the hotel when he poured beer over Elizabeth Lynch. His continued highly emotional state was described by Elizabeth Lynch’s mother when he had returned to the property from the hotel. It is very difficult to understand why Jason Phelps did not leave Elizabeth Lynch once this outburst had occurred at the hotel. Tragically he did not do so and accompanied her home and indeed decided to spend the night with her in the old house. It is quite likely that everybody’s judgement was affected to a degree by the amount of alcohol that had been consumed.

39 It is appropriate to see the acts and words which constituted the provocation as cumulative on the 11 and 12 August 2001. In his ERISP interview, the prisoner (Question 153) had tried to explain his own state of mind when he saw the lights on up at the old house and appreciated that the party was continuing up there in his absence. He said:

“I didn’t know if they were drinking or what they were doing. But like, something happened to me, I can’t explain it.”

He was asked how he felt and he said:

”not real good…sort of, I don’t know, I just seen, you know how you look at a light and you shut your eyes how you can see that? That’s what I seen when I was walking from the house up to this house.”

He said that when he saw Liz getting into the same bed as Jason he felt “worse” than when he did when he had seen the light on. Not only his own words but the words of Mrs Serbedjija demonstrate the extent of the prisoner’s loss of control. Further his actions when he came through the lounge room window and into the bedroom in the old house were consistently those of a person who was seriously out of control. He was described as “waving the knife in all directions”. It is clear that his loss of self control caused him to use the knife in a wild and somewhat indiscriminate manner while he was in the state of loss of self control. The degree of violence and aggression displayed by the prisoner in the bedroom however was in my opinion relatively high. However, it was a level of violence that was commensurate with the prisoner’s loss of self control. It seems that once he was struck over the head with the hatstand he must have come to his senses and realised what he had done. He did not display any further aggression towards either Christine Henry or her mother but left the premises quickly and in fact rang the emergency services ambulance to report the stabbing. It is quite clear that he immediately realise the terrible thing he had done. His subsequent conduct in taking part in an interview with police and co-operating in a video walkthrough is consistent with this realisation.

SUBJECTIVE CIRCUMSTANCES

40 The Prisoner is now 48 years of age. He was raised in West Wallsend where his father worked as a coalminer. He enjoyed a good childhood in relatively comfortable circumstances although the family was affected by his father’s heavy drinking when he was younger. The prisoner attended school at West Wallsend where was an average student. He left school at 15 and began working as a coalminer. He pursued this occupation for about 18 years until he was granted a disability pension because of the effects of his drug use.

41 The prisoner began drinking alcohol at about the age of 14 and became a binge drinker. He stopped drinking in this destructive manner during his early adult life but then began using drugs. He took up the drinking again in his late 20s and his early 30s in combination with amphetamine use. He began using heroin in his late teenage years and was a daily user until the age of about 25 when he stopped for a period. He resumed his heroin intake later but stopped using heavy drugs altogether after the birth of his son about four years ago. He is now a current methadone user.

42 An examination of the prisoner’s criminal history shows that he has quite a significant criminal record in matters related to drug taking and alcohol consumption. This has resulted in convictions of a minor kind consistent with the use of drugs and alcohol. His only significant and relevant convictions for present purposes are, first a conviction for assault occasioning actual bodily harm which lead to him receiving a 15 month periodic detention sentence. This was in January 1986. I understand as a consequence of his failing to fulfil his obligations in this regard he in fact spent six months in full time custody.

43 The second matter is a domestic violence common assault for which he was placed on a recognisance pursuant to s 558 of the Crimes Act in October 1995. This related to an assault on Elizabeth Lynch.

44 It is clear that, when provoked, the prisoner is capable of acting with aggression, although generally he appears to be regarded as a quietly spoken man whose behaviour is not out of the norm.

45 Evidence from Dr Olaf Nielssen, a psychiatrist, demonstrates the prisoner is of average intelligence and that he has no psychiatric condition beyond the depression he was suffering at the time of the death of the deceased. Although the prisoner had sustained three significant head injuries during his lifetime there does not appear to be any significant brain damage or impaired mental function. Although he may have been moderately affected by alcohol and cannabis at the time of the attack this appears to have been a relatively minor factor in his actions on that day.

46 The prisoner married for the first time at the age of 17. He has two adult sons from that marriage. There are children as well from his marriage to Elizabeth Lynch. One matter which has been specifically brought to my attention is the fact that Elizabeth Lynch’s actions after the killing have resulted in the situation where he has not seen his children since being in gaol and it is highly unlikely that he will be permitted to do so while he remains in custody.

47 Evidence on the prisoner’s behalf was given by Mrs Elwell a retired school teacher from the Kurri Kurri district. Mrs Elwell has done counselling since her retirement as a teacher and in this capacity she had a number of sessions with the prisoner and Elizabeth Lynch. She described him as a courteous man, a man women would be comfortable with; he was a man who related well to his mother in law and was gentle and helpful towards her. He was the carer in the family situation so far as the children were concerned. She said that Elizabeth Lynch often spoke about the prisoner in a very disparaging manner. Mrs Elwell’s attempts to mediate between the two were not successful. In about May 2001 she saw the prisoner at Kurri Kurri hospital and spoke to him. He told her that he did not know how he could go on any longer in the relationship and appeared she said very distressed and unhappy. The prisoner has written to Mrs Elwell from prison and it is apparent he has achieved a considerable deal of peace as a consequence of his embracing religion while in prison.

48 This was confirmed by the evidence of Father Michael Walsh, the prison Chaplain from Long Bay who voluntarily came to give evidence on the prisoner’s behalf. He said that the prisoner had taken responsibility for his actions in relation to the death of Jason Phelps and had shown deep remorse. He thought the prisoner had excellent prospects of rehabilitation

49 It is clear from all of the evidence regarding the prisoner that while there has been some violence in his past, he is not generally seen as representing an ongoing risk of danger to the public.

THE SENTENCE

50 It is necessary to impose a sentence in relation to each offence to which the prisoner has pleaded guilty. The Crown has accepted that the manslaughter and wounding with intent are so closely linked as to be regarded as a single act of criminality.

51 There is no dispute in the present matter that the principles stated in Pearce v Regina 194 (1998) CLR 610 at 662-664 have application. These principles require a Judge sentencing an offender for more than one offence to fix an appropriate sentence for each offence and then to consider questions of cumulation and concurrence, as well as questions of totality. I propose in the present case to fix a sentence for each offence and to make the sentences partially cumulative on each other. At the same time it is necessary to ensure that the sentence in aggregate fits or is appropriate to the total criminal conduct of the offender (Larsen (1989) 44 A Crim R 121 at 127.)

52 The offence of manslaughter is a particularly serious crime since it involves the taking of a human life, the protection of which is the primary objective of the criminal justice system. See Hill (1981) 3 A Crim R 397 at 402 per Street CJ; MacDonald NSW CCA 12 December 1985. In the latter case the Court of Criminal Appeal emphasised that the taking of a human life is a most serious matter. At page 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 R 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 R v Hill, 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 judgement, and the interests of society in protecting itself and its members from criminal activity as, in the present case, the taking of a life.”

53 In Veech, Wood CJ at CL made it clear that it is important in matters of the present kind to pay particular regard to the objective severity of the case in hand to ensure that the sentence is commensurate with the seriousness of the crime in the sense that, having regard to all the proved circumstances of the case, it accords with the general moral sense of the community.

54 The matter which requires particular comment in the present situation is that the prisoner armed himself with two knives when he went over to the house and ultimately confronted the deceased and Elizabeth Lynch. These circumstances make the level of culpability especially serious. It is necessary in selecting a sentence in relation to each of the two offences to bear in mind that the sentence must reflect both personal and general deterrence. It must in particular underline the proposition that where individuals resort to carrying a knife in a situation of domestic anger and disharmony, such conduct is to be firmly denounced and condemned. It is the sad and tragic fact that the deceased probably would not have died had it been the situation that the prisoner went to the old house, angry and distressed as he no doubt was, without a dangerous weapon in his possession. A similar observation may be made in relation to the serious wounding of Elizabeth Lynch in the fracas. She would not have been wounded in the way in which she was if the prisoner had not been in possession of a knife at the time of the attack.

55 Before coming to the imposition of the sentences I should say two further things. First, it is necessary to mention that pursuant to s 28 (3) of the Crimes (Sentencing Procedure) Act 1999 I have received victim impact statements from the family of the deceased. In addition I have received a report from Dr David Spencer a clinical psychologist who has recorded his findings in relation to the impact of the attack on Elizabeth Lynch. The statements from Mrs Brown and Christine Henry speak very movingly about the effect upon the family of the untimely death of their beloved son and brother. The Court extends to those persons its sympathy. It is hoped that they may find that it has helped them to express themselves through these statements. I have also taken into account the matters that are listed in David Spencer’s report in relation to the injuries to Mrs Lynch and the consequential impact upon her of the incident and the trauma entailed in it. Ultimately, however, I have come to the conclusion that I do not consider that it is appropriate to have regard to the statements by Mrs Brown and Miss Henry 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).

56 The second matter is that it is necessary in determining each of the sentences to be imposed in the present matter to have regard to the matters set out in s 21A of the Crimes (Sentencing Procedure) Act 1999. I have endeavoured to do this and have considered carefully each of the matters set out in that section. In particular I think it is fair to say that I have come to the ultimate conclusion that the prisoner has in fact shown a degree of remorse for the offence. There was some debate in submission about this aspect of the matter but I am overall satisfied that the prisoner has exhibited genuine remorse for his actions. Exhibit 2 is a letter written to the Court by Kevin Lynch. This document makes it clear that the prisoner has accepted responsibility for his actions. He has expressed his sorrow for the consequences of his actions upon the victim’s family as well as upon Elizabeth Lynch. I should add that the general nature of the prisoner’s actions immediately after the event are consistent with a gradual realisation of the enormity of that which he had done to two innocent people. By this I refer to the fact that he ceased his attack once he had been brought to his senses by Mrs Brown’s action in striking him. Secondly, he went back to his property and immediately rang the emergency ambulance service in an endeavour to get them to come and assist the people he had wounded. Thirdly he gave himself up to the police on that morning and to a very large degree co-operated in the record of interview and the subsequent videotaping which occurred later that day. He has also expressed remorse through his statements to Mrs Elwell and to Father Walsh. His pleas of guilty are relevant as well in that regard.

57 I am quite sure that the prisoner will live the rest of his life and certainly the years he must spend in custody reflecting upon the terrible actions that he carried out on 12 August 2001 and which were directly responsible for the needless and tragic loss of a valued human life.

SPECIAL CIRCUMSTANCES

58 A number of matters were relied on by Mr Stewart in support of an argument that the Court should find special circumstances so as to warrant a variation of the statutory proportion between total sentence and non-parole period (s 44(2) of the Crimes (Sentencing Procedure) Act).

59 The matters relied upon by Mr Stewart were these. First, that at the time of the offence the prisoner was suffering from depression to the extent that he required medication to treat the condition. Secondly his time in custody will be more onerous because of the fact that he will be separated from his children. Thirdly, this is the first time a sentence of full time custody will have been imposed on the prisoner. Fourthly, his age – he will be of mature age when he will be released from custody. Finally, the prisoner is a person about whom it may be said he has good prospects of rehabilitation. He has shown remorse and taken responsibility for his actions. It is unlikely that he will re-offend again.

60 The first response I need to make is that it is my view, having regard to the length of the sentence I propose to impose, the period of parole that will result, if the usual proportion of the non-parole period to the total sentence is maintained, will be sufficient for the prisoner’s rehabilitation upon release without any further extension. Secondly, I have given earnest consideration to the matters advanced on the prisoner’s behalf but on my view there has not been shown to be any other reason to justify a lesser non-parole than one of three-quarters of the total sentence (Simpson (2001) NSWCCA 534).

61 I should also add that although the prisoner was suffering from some degree of depression when the offence was committed, it does not appear that he is suffering from that condition to any great extent now. Secondly, the prisoner in fact served a period of full time imprisonment in relation to the 1986 conviction. Thirdly I think it is fair to say that I have taken each of the suggested matters into account generally in relation to the selection of an appropriate sentence and I do not consider in all the circumstances that there is any justification for a finding of special circumstances in this case.

62 The final matter relates to the prisoner’s plea of guilty. I am satisfied that the plea of guilty was entered at the first available opportunity in relation to each offence. Consequently, the prisoner is entitled to a discount for his plea in relation to each matter (see s 22 Crimes (Sentencing Procedure) Act 1999. I propose to make an appropriate allowance for this in the ultimate sentences. In my view a discount of 15% is appropriate in relation to each plea.

63 I have concluded that after making the appropriate discount calculation a head sentence of 4 years and 3 months with a non-parole period of 3 years would be appropriate in relation to the charge of malicious wounding with intent. I will back date the sentence to reflect the period of time the prisoner has been in custody. In relation to the manslaughter charge I have determined that, without a discount for plea, a head sentence of 9 years would be an appropriate term of imprisonment. Applying the discount of 15% I intend to impose a head sentence of 7 years and 8 months with a non-parole period of 5 years 9 months for this offence. I will make this sentence partially cumulative upon the first sentence by commencing its operation from the 12 August 2002, that is one year after the date the prisoner first went into custody.

64 For the reasons I have already announced there are no special circumstances so as to warrant the non-parole period in each case being less than three-quarters of the term of the sentence (s 44(2) Crimes (Sentencing Procedure) Act 1999).

65 Kevin James Lynch in relation to the charge of malicious wounding with intent I sentence you to a head term of imprisonment of 4 years and 3 months. The sentence is to commence on 12 August 2001. I set a non-parole period of 3 years 2 months to expire on 11 October 2004. The date you would be eligible for parole but for the sentence I am about to impose in relation to the manslaughter conviction is the 11 October 2004.

66 In relation to the conviction for manslaughter I sentence you to a head term of 7 years and 8 months imprisonment. The sentence is to date from 12 August 2002. I set a non-parole period of 5 years and 9 months commencing on 12 August 2002 and expiring on 11 May 2008. The prisoner will be eligible to be released to parole on 11 May 2008.

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Last Modified: 12/04/2002