Regina v Mark Allan Forrest

[2008] NSWSC 301

CITATION:	Regina v Mark Allan FORREST [2008] NSWSC 301
HEARING DATE(S):	18, 19, 20 and 21 February 2008
JUDGMENT DATE :	4 April 2008
JURISDICTION:	Common Law Division Criminal List
JUDGMENT OF:	Studdert AJ
DECISION:	Sentenced to imprisonment with a non-parole period of 5 years and 9 months commencing on 27 January 2007 and expiring on 26 October 2012 and a balance of term of 1 year and 9 months expiring on 26 July 2014. First date of eligibility for parole is 26 October 2012.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s 3 Criminal Procedure Act 1986 s 157
CATEGORY:	Sentence
CASES CITED:	Regina v Blacklidge NSWCCA (unreported) 12 December 1995 Regina v Alexander (1995) 78 ACR 141 R v Thomson & Houlton (2000) 49 NSWLR 383 Prevatera (1994) 94 ACCR 76 Boland (1998) 99 A Crim R 510 R v Cardoso (2001) NSWSC 775 R v Dally (2000) NSWCCA 162 R v Diamond (2000) NSWSC 1212 R v Howard (1999) NSWSC 1228 R v MHN No. 2 unreported Kirby J 20 November 1998 R v Sherry (2000) NSWCCA 35 R v Vandersee (2000) NSWSC 916 R v Veech (2001) NSWSC 68 R v Teklemariam Abebe (2000) VSC 567 R v Marlow (2003) NSWSC 1130 R v Walsh (2004) 142 ACR 140
PARTIES:	Regina (Crown) Mark Allan Forrest (Accused)
FILE NUMBER(S):	SC 1696/2007
COUNSEL:	P Barnett SC (Crown) C Davenport SC (Accused)
SOLICITORS:	Director of Public Prosecutions Legal Aid Commission of NSW

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

STUDDERT AJ

Friday 4 April 2008

2007/1696 R v Mark Allan FORREST

SENTENCE

1 STUDDERT AJ: Mark Allan Forrest is before the Court to be sentenced for the crime of manslaughter. It has been repeatedly remarked upon in the courts that because of the range of circumstances in which this crime may be committed it is difficult to obtain guidance from sentences imposed on other offenders who have committed the crime of manslaughter. As Gleeson CJ remarked, in his much cited judgment in R v Blacklidge, NSWCCA (unreported) 12 December 1995:

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 that can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances and culpability.

2 At the outset in my sentencing task I must consider the particular features of this case, both objective and subjective.

3 The victim of the crime here to be considered was Brett John Crittenden. He suffered fatal injuries when stabbed by the offender on the night of 26 January 2007. The stabbing took place in the grounds of a private residence at 52 Elsiemer Street, Long Jetty. The offender stabbed the deceased using a kitchen knife, with a blade some 21 centimetres long and with a handle approximately 13 centimetres long. After the stabbing the deceased was taken by ambulance to Gosford Hospital, where he died.

4 A post-mortem examination was carried out on 28 January 2007 and this led to the preparation of a report from Associate Professor Lyons, dated 14 May 2007 in which the author recorded his post-mortem findings and it is convenient to refer to these findings. The doctor found four areas of wounding. There was wounding to the axilla, the back and the temple areas, but the wounds there were superficial and the doctor opined, and I accept, that they did not significantly contribute to death. The significant wounding was to the abdomen and I record the doctor’s findings concerning the wounding in this area:

“At post mortem, it was observed that this man had a stab wound to the front of the abdominal wall on the left lower side. This wound ran almost vertically downwards from front to back and extended through duodenum, jejunum, bowel and mesentery and had transacted both the portal vein and superior mesenteric artery. This had resulted in extensive haemorrhage into the upper gastrointestinal tract, the retroperitoneal space and the abdominal cavity. This was considered to be the wound which led to death, and the pathophysiological mechanism of death was hypovolaemic shock secondary to acute blood loss .”
(Emphasis added)

5 The post mortem findings reviewed above were not challenged and I accept them. I find that the cause of death was as expressed by Associate Professor Lyons and that the offender was responsible for all the stab wounds described.

6 The premises where the deceased met his death were owned by a man named Darren Taylor. At the time of the killing the offender was living at that address. Present at the address when the offender stabbed the deceased was Karen Crittenden, who was in a relationship with Darren Taylor. Karen Crittenden had been married to Jon Crittenden, the deceased’s brother. That marriage had failed by 2000 and thereafter Karen Crittenden formed a relationship with the deceased. That relationship came to an end to be followed by the relationship with Darren Taylor, which had been on foot for some two years by the time the deceased met his death.

7 On the night of the 26th of January 2007 Darren Taylor was absent from his home, but Karen Crittenden was there and staying overnight. Karen Crittenden gave evidence before the offender’s plea was accepted, and I accept her evidence as I now summarise it.

8 This witness was disturbed as she lay in bed by the arrival home of the offender, who announced that he had brought a friend, Brett, home with him and he sought Karen Crittenden’s permission to play some music. Thereafter Karen Crittenden went out to see the offender and his companion and she recognised the companion as Brett Crittenden, the person with whom she had had the previous relationship. Karen Crittenden made it plain that her former de facto husband could not remain in the house and the offender asked him to leave. The deceased was unhappy to do so, but he did leave the house. However he did not leave the grounds. The evidence given by Karen Crittenden established that after the deceased left the house he became really angry, seemingly because he had been asked to leave. He invited the offender to leave the house and to go out to where the deceased was in the driveway, so that he could fight him. According to Karen Crittenden the offender expressed reluctance, saying he did not want to fight. However, the offender did join the deceased and there was some pushing and shoving, neither man losing his footing or being hurt.

9 Karen Crittenden gave evidence that she sat on the landing at the top of the steps into the house and it was from this point that she observed what thereafter occurred. This witness said that the deceased came up to her and put his face close to her, leaning forward with one foot still on the ground and the other on the bottom step. He said to her, “I’ll stab you” and repeated the threat three times. He was clutching a can of bourbon in one hand and holding onto the railing beside the steps with that hand, whilst with the free right hand he pointed his right index finger at her. The witness became aware that the offender passed her on the steps and went into the house. Her evidence was that the deceased was still in the position earlier described and shouting at her when the offender reappeared. Karen Crittenden saw the offender make a movement with his right hand and make contact with the deceased. When he drew the hand back the witness saw that the offender was holding a knife and the deceased touched his stomach and said, “I’ve been stabbed”. The witness saw the deceased turn his back on the offender, who thereupon stabbed him again in the vicinity of the left shoulder blade. After the deceased fell the offender said, “I love you Karen and no one threatens my mate’s missus and gets away with it” or words to that effect.

10 The offender promptly admitted to the police he had stabbed the deceased. He told police at the scene: “I stabbed him. He was going to stab the lady. I got in first. I stabbed him straight up the guts twice.” Later whilst in the dock at the police station, following his arrest, the offender volunteered a further admission as to his responsibility for the stabbing.

11 The evidence discloses that before the deceased and the offender arrived at the premises at 52 Elsiemer Street they had been drinking together at the Long Jetty Hotel.

12 The offender apparently invited the deceased back to the residence and there is no reason to doubt that his intention in doing so was to have a drink there with the deceased and to listen to some music. The offender had been drinking a great deal, but Dr Giuffrida was dismissive of the significance of this in the report to which I shall shortly refer. This was because of the offender’s heavy use of alcohol leading to high tolerance to alcohol. I heed Dr Giuffrida’s opinion to this effect.

13 This was not a killing which was pre-planned. Nevertheless, whilst the deceased was threatening Karen Crittenden as she sat on the porch, the offender went into the house and armed himself with the knife, which he knew to be located in the kitchen. He then returned and attacked the deceased with it.

14 A human life has been taken and prima facie the objective circumstances of this crime as reviewed are serious indeed.

15 I am asked to proceed to sentence the offender upon the basis that his crime is that of manslaughter by reason that his conduct in killing the deceased was committed under provocation. This was the basis upon which the Crown conveyed its willingness for the acceptance of the plea proffered by the offender and Ms Davenport, has addressed her submissions to the Court, on the basis that the crime committed was manslaughter by reason of provocation.

16 It follows from this that the offender is to be considered to have acted at least with intent to cause grievous bodily harm. Indeed his conduct in stabbing the deceased in the manner in which he did compels the conclusion that the offender acted with that intent. The Crown very properly did not invite the Court to find that the offender acted with intent to kill. I find on the evidence that the offender stabbed the deceased with the intention of causing him grievous bodily harm.

17 Before considering the issue of provocation it is appropriate that I record features of the offender’s background.

18 The offender was born on the 15th of April 1958. He was the eldest of four children and to Dr Allnutt, who examined him in September 2007 he described his father as a difficult man and he gave a history of being exposed to some physical violence by his father. The offender left school at the age of 16 years having finished Year 10. He did work principally of an unskilled nature thereafter and appears to have worked spasmodically until 1986, from which time he was on a disability support pension. To Dr Giuffrida he gave a history of a spinal injury with resultant disability and this may be the basis for the disability pension, although this is by no means clear.

19 The offender was involved in a number of failed relationships and was in an unsettled relationship at the time of the commission of this crime. The offender attributed his failed relationships to his alcohol dependence.

20 The offender has a criminal record, which extends back to 1977. It is not a grave record: it contains offences of dishonesty and in 1978 a sentence of imprisonment was imposed for a stealing offence. Otherwise however, his offences appear to have been dealt with by way of recognisance or fine and in 2004 the offender was disqualified from driving for a period of three years. Significantly for present purposes, the only real offence of a violent type resulted in a conviction for assault in 1984. For that offence a monetary penalty only was imposed.

21 The offender’s record is not such as to be regarded as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act.

22 There was an event in Perth on 1st July 1978, which resulted in the offender becoming the recipient of a bravery award in January 1979. Material has been placed before the Court by way of newspaper reports as to what occurred (Exhibit 2). In addition, a copy of the media statement published in conjunction with the award by the Australian Honours and Awards Secretariat on 18th of January 1979 is attached to a letter of Deborah Bowden, dated 19 October 2007 (part of exhibit B) and this reads as follows:

Mark Forrest, 8 Kinkuna Street, Busby, N.S.W.
On 1 July 1978 at about 9.30 p.m. Mr. Forrest witnessed a fight between two men on a street corner in Perth, Western Australia. The assailant was armed with a knife and had already inflicted severe wounds on the victim, who later died as a result.
Mr Forrest went to the aid of the victim and grappled with the attacker, who then menaced him with the knife before breaking loose and running off. Although slightly injured himself, Mr Forrest gave chase but the assailant escaped.
Mr Forrest displayed considerable bravery in attempting to defend the victim and apprehend his attacker.

23 This was a noteworthy episode which assumes significance in the present context having regard in particular to the psychiatric assessments carried out by Dr Giuffrida and by Dr Allnutt. The content of the reports of these psychiatrists bears upon the issue of provocation, and the reports call for close attention.

24 Dr Giuffrida, whose report of the 20th June 2007 became exhibit 1 in the proceedings as to sentence, furnished that report after consultation with the offender on the 12th of June 2007. Dr Giuffrida’s assessment preceded that of Dr Allnutt and hence I refer to it first.

25 Dr Giuffrida obtained a history of the stabbing episode in Western Australian in 1978 and about that event the offender gave a history that he had experienced flashbacks over the years. The offender also said that he had thoughts about what could have happened. Dr Guiffrida wrote (at page 6 of his report):

“Mr Forrest said that over the years that he has continually thought of what ‘could have happened.’ He thinks that he could have been stabbed repeatedly and killed like the victim. He said that he continually relives the terrible feeling of fear and the realisation that he could be stabbed and killed when he realised the assailant had a knife.
Mr Forrest told me that he has since at the time that incident had dreams of the incident and various distortions and extensions of it. He said for example that he would dream that he himself was being pursued by the assailant and repeatedly stabbed and in danger of dying. In other dreams he pursues the assailant and eventually catches him. Of some significance is that the dreams where for example he sees himself being stabbed or he catches the assailant who was carrying a knife, would end and he would wake up at this point in a state of panic.
I should say here that Mr Forrest’s history of panic attacks which first appeared after the incident in Perth in 1978 have in all probability had as their cause the terror produced by that incident.”

26 Dr Giuffrida expressed the following opinion (at page 11 of his report):

“I believe it is quite clear that Mr Forrest has suffered from a long standing Post Traumatic Stress Disorder which resulted from his exposure to the grossly traumatic incident when he was confronted with a serious knife attack and saw the victim bleed to death and slowly expire before his eyes in 1978. The incident clearly involved the actual serious life threatening injury and ultimate death of the victim and the threat of serious injury or death to himself in that incident.
Mr Forrest’s response to that incident at the time was one of overwhelming horror which I should add has haunted him ever since in the form of terrifying nightmares and a daytime reliving experiences in the form of flashbacks in which he vividly recalls the trauma of that night.
I thought that Mr Forrest gave a very good and convincing explanation of the feeling as if the traumatic incident was recurring when certain triggers were present. These include any exposure to external cues that symbolise or resemble in some way the original traumatic incident. This may include simply observing or witnessing an argument in the hotel or a fight or even watching a movie in which knives or other weapons are used and people are threatened.
The traumatic incident is re-elicited in the form of flashback type episodes which at times have a dissociative quality with vivid visual imagery or in the form of dreams.
It is clear from his description that these reliving experiences also trigger acute anxiety in the form of panic attacks. His panic attacks are in particular manifested by a sense of choking and not being able to breath, marked palpitations and muscle spasm which all represent signs of marked physiological reactivity on exposure to internal or external cues or triggers that symbolise or resemble the original incident.
There is some evidence of avoidance of stimuli associated with the traumatic incident including for example backing down in arguments or avoiding any conflict or altercation as well as avoiding watching movies or television that show violence but particularly that involving knives.
It would also seem that Mr Forrest’s long history of alcohol abuse and probable dependence has been his own means of avoiding or diminishing his own emotional and physiological response to any reliving of the traumatic incident.
I believe that he has persistent symptoms of increased arousal, mainly in the form of ongoing anxiety disorder and panic attacks in particular.”

27 Dr Guiffrida went on to write:

“I think that given the fear and Mr Forrest’s belief that Karen or himself were going to be stabbed by Brett Crittenden, that he experienced severe anxiety and possibly and indeed probably a panic attack associated with the symptom of derealisation or a sense of unreality of the environment and I thought that Mr Forest described this most convincingly. I should add that the Dissociative Episode may in this instance may simply be a function of a reliving of the traumatic incident which is characteristic of Post Traumatic Stress Disorder.”

28 Dr Allnutt assessed the offender on 3 August 2007 and like Dr Guiffrida he furnished a comprehensive report following that assessment. Dr Allnutt’s report is dated 5 September 2007. The offender gave Dr Allnutt a very extensive account of the incident in Perth in 1978 and gave Dr Allnutt an account of having reflected on the experience many times and of having flashbacks. Dr Allnutt reported:

“After the incident, the defendant reflected many times on the experience. He contemplated the issues particularly with regard to ‘what if … .’ He said that he thought he could have helped the victim. He would have thoughts such as ‘what if I’d been the victim;’ and what if the police officer had listened to me and chased him.’ He said that it was many years before the assailant was arrested. He said he never dwelled on the incident but when he did, he realised how lucky he was to have lived. On reflection soon after the incident he had realised that the assailant was not punching the victim when he walked out of the shop he was stabbing him.
The defendant stated that on occasions when he closed his eyes, in his mind’s eye, he would see the victim’s head and blood. He stated ‘I could see colour, the actual colour.’ ‘I see him slumped in blood and gore. I can hear the lady scream, ‘he’s got a knife.’ I can hear that vividly. I can hear car horns.’ He said that these images continued to recur. In the past year they had occurred once or twice a month and when they did, they would last for about 30 seconds. He said that they were ‘like a flashback.’ He denied that the flashback was as if he was ‘back there’; but it was like an image that did not go away. He stated ‘I’d sort of drift off and I think and then I fight it’ ‘the image.’ The defendant stated that on occasions he would have dreams about the incident. These occurred about half a dozen to 10 times a year. The dreams would consist of ‘the gore and the screams.’ Of the incident he said it was as if it was ‘burnt’ on his brain. Over the years he had come to accept these ‘flashbacks.’ Generally, he ‘fights it’ and ‘gets out of it quick’ by think of something ‘good.’

He stated that for many years since the 1980s he had been more prone to ‘jump, for example, if a car backfires.’ If he saw people arguing, he preferred to avoid the confrontation. He said he wanted to avoid violence. When he watched a violent movie he stated he would ‘drift off and again reflect on the situation.’ He watched violent movies and was not particularly avoidant of them however.”

29 The offender proceeded to give Dr Allnutt a very detailed account as to the circumstances in which he stabbed the deceased after which Dr Allnutt asked him about his feelings at the time of the alleged offence. Dr Allnutt wrote:

“He said that he had palpations and an ‘adrenalin rush.’ He could not say whether or not he had shortness of breath. He recalled thinking ‘I have to act otherwise someone is going to be stabbed.’ Again he clarified that his belief was that at the time he was protecting himself and ‘Karen’ from actually getting stabbed. I asked him whether or not he experienced a sense of unreality about himself, his environment, floating above himself or being in a dream and he denied all these experiences at the time. I asked him whether or not he had ever had any experience of this in the past and he also denied this. Overall he felt fearful – he was shaking and he had palpations. He was unsure whether or not it was a panic attack that he was experiencing.”

30 It was Dr Allnutt’s opinion that the offender had developed a chronic anxiety disorder following the incident in 1978 which manifested itself with episodes of panic attacks and re-experiences of the trauma. In a supplementary report dated 18 February 2008 Dr Allnutt wrote:

“… I think that in the light of the events in Perth and their subsequent affect on the accused and his reactions to them over the years up to and particularly on the night of 26 January 2007; and due to anxiety, he would be more vulnerable to jumping to the conclusion that the victim had a knife and that in his state of intoxication at the time, it is reasonably possible that the thought that the deceased had a knife and was going to stab his friend; and became incensed by this to the extent that he formed an intention to kill or at least inflict really serious bodily hurt upon the deceased.

31 On either expert view the episode in Perth in 1978 bore upon the offender’s conduct on the 26th of January 2007 and however his disorder be labelled, the offender had a disorder directly relevant on the issue of provocation.

32 Karen Crittenden impressed me as a truthful and generally reliable witness and in her evidence described conduct by the deceased relevant to the issue of provocation: (i) the witness described the deceased as appearing to be angry when he invited the offender to join him outside the house to fight him; (ii) according to the witness, the deceased remained angry after the offender expressed his unwillingness to fight him; (iii) the witness described the deceased’s behaviour subsequently as being angry and threatening and as he leant over the witness he threatened to stab her.

33 I refer to the cross-examination of Karen Crittenden when she was asked about the content of statements made to the police at page 101:

“Q. And if I could ask you to go, please, to page 3 of that statement at paragraph 20?
A. Yes.
Q. There you say that in fact what Brett was saying to you when he was leaning over you was, “I’ll stab you, don’t think I won’t because you know I will, I’ll stab you”?
A. Yes.
Q. And you say further down that he repeated that threat a number of times?
A. Yes.
Q. And he continued saying the threat whilst Mark was inside?
A. Yes.
Q. And he wasn’t saying that quietly, was it, he was yelling that at you?
A. Yeah, he was in my face, yes.”

34 Karen Crittenden said the offender was only in the house for a short time before he returned and the stabbing occurred. She said that when the offender came back outside the deceased was still in the same position leaning over her and shouting in her face.

35 I accept the evidence of Karen Crittenden as above summarised and it has a direct bearing upon the issue of provocation.

36 Having reflected upon the evidence given by Karen Crittenden and the expert assessments of the psychiatrists in this matter, I find that at the time he stabbed the deceased the offender was acting under provocation, and the offender is to be sentenced therefore for the crime of manslaughter.

37 In his much cited judgment in R v Alexander (1994) 78 ACR 141 Hunt CJ at CL identified three issues necessarily to be taken into account when sentencing in provocation manslaughter cases. After identifying sources leading him to the conclusions expressed, his Honour said at 144:

“A study of those cases - confirmed by the academic article to which I have referred- suggests that three particular matters which have been taken into account in provocation manslaughter cases 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 (whether isolated or cumulative in its effect) 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.”


I will consider these three matters in turn.

The degree of provocation offered

38 Ms Davenport submitted that the degree of provocation in this case was high when one has regard to the perception of the offender influenced as it was by his involvement in the stabbing incident in 1978 and his subsequent disorder.

39 It is not clear precisely what the offender’s perception was about the threat of the knife attack by the deceased. The offender had been with the deceased earlier in the hotel and they then went to the premises where the attack took place. The clothing worn by the deceased would not have been capable of concealing a knife: he was wearing nylon football shorts which had no pockets, and a singlet which was also without pockets. Any knife that the deceased had, if there was one, would have to have been in the backpack he was wearing. The offender gave the detailed but confused account of events to Dr Allnutt which the doctor has referred to at pages 10-15 of his report. The offender also gave the account to Dr Giuffrida about the events and circumstances leading up to the stabbing recorded by Dr Giuffrida at pages 7-8 of his report. I will not record those accounts here but the evidence does not make it clear that the offender believed that the deceased was actually holding a knife when the offender stabbed him. The deceased was not armed with a knife, and the lighting where the attack took place was good enough for the offender to have seen this to have been the case. Nevertheless the deceased was angry, he was shouting and he was threatening Karen Crittenden. In the circumstances, having regard to the psychiatric assessments, the offender is entitled to have the court approach the issue of provocation on the basis that the offender entertained the perception that the deceased had access to a knife by means of the use of which he was in a position to carry out his threat towards Karen Crittenden. Further, the offender is entitled to have the court approach this question of provocation on the basis that the offender entertained that perception at the time he stabbed the deceased.

40 It seems to me in the circumstances that the degree of provocation offered by the deceased should be assessed as significant, but by no means extreme.

The lapse of time between the provocation and the loss of self-control

41 The time during which the events as described by Karen Crittenden occurred before the stabbing was relatively short. Relevant conduct of the deceased began when he was in the driveway and led up to the point where the deceased was standing close to Karen Crittenden and repeating his threats to stab her. He was persisting with those threats immediately up to the point when the stabbing took place and I find that the time factor tends to reduce the objective gravity of the crime committed by the offender.

The degree of violence displayed by the offender

42 The offender used a knife to inflict serious abdominal wounding. The evidence does not permit me to find that he stabbed the deceased more than once in the abdomen. The other wounds to the axilla, the back and the temple were superficial and this is not a case in which there were a succession of wounds inflicted each of which would have been capable of causing death. This was not a frenzied and sustained attack. This is of course not to trivialise the extent of the violence with which the offender acted.

43 I am obliged to weigh the Alexander issues in order to arrive at an appropriate sentence in this case.

44 The offender is entitled to a reduction in the sentence which would otherwise have been appropriate by reason of his plea of guilty to manslaughter.

45 It was on the second day of this trial when the offender was re-arraigned that the Crown indicated a willingness to accept a plea of guilty to manslaughter in satisfaction of the indictment charging murder. This plea was accepted by the Court pursuant to s 157 of the Criminal Procedure Act. The same plea had been offered, but not accepted by the Crown when the offender was first arraigned in front of the jury panel and the offender had conveyed a willingness to plead guilty to manslaughter as long ago as the 21 May 2007, when the matter was still pending at Local Court level. Exhibit D is a letter from the Senior Trial Advocate of Legal Aid. This letter is dated the 21 May 2007 and records the offender’s willingness at that time to enter a plea of guilty to a charge of manslaughter. The offender is entitled to a discount on the sentence which would otherwise be attracted, having regard to the utilitarian value of the plea eventually accepted but first offered at a time only four months after the commission of the crime.

46 Ms Davenport submitted that in the circumstances the maximum discount of 25% contemplated in R v Thomson & Houlton (2000) 49 NSWLR 383 would be appropriate having regard to the time at which the plea was first offered by the offender. The Crown accepted that it was an appropriate case for the allowance of a discount at the upper end of the range. It seems to me that since the offender offered to plead guilty to manslaughter 4 months after the commission of this crime, when the matter was still pending at Local court level, I should reduce the sentence I would otherwise have imposed by 25%.

47 The offender gave evidence before me expressing his contrition and remorse. I believe the offender’s evidence to this effect was genuine.

48 Karen Crittenden who had become acquainted with the offender through Darren Taylor gave evidence that prior to 26 January 2007 she had not seen the offender becoming involved in an argument with anybody. Evidence was given by Gwendoline Aitken who was employed as a bar maid at the Long Jetty Hotel. The offender was known to her as a customer at that hotel. She had seen him drinking at the hotel often. Her evidence was that she had never seen the offender involved in any fight or argument in the hotel.

49 I am mindful of this evidence in making an assessment as to the prospects of rehabilitation. Having reflected on the totality of the evidence I consider that the prospects of rehabilitation in this case are good and indeed that the offender is unlikely to commit an offence of the type here contemplated after he is released from custody. Nevertheless I must have regard to all the purposes of sentencing as expressed in s 3A of the Crimes (Sentencing Procedure) Act and the offender must be appropriately punished and his crime must be denounced. Considerations of retribution and deterrence, not only personal but general, are to be addressed.

50 On the occasion of the hearing as to sentence I was informed by the Crown that the court would be invited to receive Victim Impact Statements which were not at that time available. The Victim Impact Statements to which the Crown referred have been made available since 21 February 2008 and those statements have been considered by me. Indeed they have been marked as an exhibit this morning. These statements were made by Jon Crittenden, the deceased’s brother, by Susan Crittenden, the deceased’s sister, and by Danni Crittenden, a child of the deceased. The grief and loss suffered by the authors of the various statements is acknowledged but in my present task I must heed was has to be determined as to the effect of those statements in these proceedings in Prevatera (1997) 94 A Crim R 76 and in Boland (1998) 99 A Crim R 510.

51 In Alexander Hunt CJ at CL scheduled 14 cases in which the court had taken a successful provocation “defence” into account for the purpose of sentence in the then relatively short period that had elapsed since the commencement of the Sentencing Act. One of these cases was exceptional in that sentence was deferred for seven years. However, in the other 13 cases the sentences ranged from 1 year and 4 months to 10 years and 6 months. In some of the cases sentencing followed a plea of guilty whilst in others the offender had pleaded not guilty.

52 In R v Cardoso (2001) NSWSC 775 Hulme J identified a number of cases where provocation had been taken into account. Alexander; supra; R v Dally (2000) NSWCCA 162; R v Diamond (2000) NSWSC 1212; R v Howard (1999) NSWSC 1228; R v MHN No 2 unreported Kirby J 20 November 1998; R v Sherry (2000) NSWCCA 35; R v Vandersee (2000) NSWSC 916; R v Veech (2001) NSWSC 68; R v Teklemariam Abebe (2000) VSC 567.

53 In MHN a fixed term sentence of 4 years was imposed after this was identified by the sentencing judge as the minimum term he would have imposed as part of a longer sentence. Total sentences in the other cases referred to by Hulme J ranged from six years to eight years. The total sentence imposed in Cardossa was 8 years, with a non-parole period of 5 years.

54 In R v Marlow (2003) NSWSC 1130 in which the Crown failed to negative provocation and in which the offender had offered a plea of guilty to manslaughter at an early stage the sentence imposed was one of 9 years with a non-parole period of 6 years and 9 months.

55 In R v Walsh (2004) 142 ACR 140 the sentence imposed was one of 7 years and 3 months with a non-parole period of 5 years and 6 months. In that case also the offender had offered a plea of guilty to manslaughter which was not accepted by the Crown.

56 I have not recorded in these reasons the facts and circumstances of the various decisions to which I have made reference in these reasons. A consideration of the features of the various cases referred to and the outcomes in them only tends to illustrate that which Gleeson CJ remarked upon in his judgment in Blacklidge to which I referred at the commencement of these remarks on sentence. Ms Davenport also referred to general statistics in manslaughter cases, but these are of extremely limited assistance. I must impose a sentence which I consider to be appropriate having regard to the particular features in this case.

57 The offender has been in custody since his arrest on 27 January 2007. Therefore the sentence I impose will be expressed to commence on that date.

58 Ms Davenport submitted that I should find special circumstances because this sentence will represent the first substantial period of time that the offender has spend in custody and because the offender needs treatment for his panic and anxiety attacks identified by the psychiatrists. I am not persuaded that I should find special circumstances here. I am satisfied that the offender is not likely to offend again and that his prospects of rehabilitation are good. These of course are matters which I take into account in his favour. However, I do not consider that the offender will require a longer period of supervision on parole than that which will be provided for in the sentence I am about to impose. Moreover I do consider in all the circumstances of this case that the offender should not serve any less a period in custody than that which I am about to set.

59 Having made an adjustment for the discount previously expressed I now pass sentence as follows:

Mark Allan Forrest, for the manslaughter of Brett John Crittenden I sentence you to imprisonment with a non-parole period of five years and nine months commencing on 27 January 2007 and expiring on 26 October 2012 and a balance of term of one year and nine months expiring on 26 July 2014. The first date upon which you are to be eligible for release on parole is 26 October 2012.

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