Regina v Massei

[2006] NSWSC 1298

CITATION:

REGINA v MASSEI [2006] NSWSC 1298

HEARING DATE(S):

4/9/2006, 2/11/2006

 
JUDGMENT DATE : 

2 November 2006

JURISDICTION:

Common Law

JUDGMENT OF:

Adams J at 1

EX TEMPORE JUDGMENT DATE:

11/02/2006

DECISION:

The offender is sentenced to a non-parole period of 2 years 9 months and 14 days commencing 30 September 2002 and ending 13 July 2005. The balance of the term is 2 years 8 months and 16 days making an overall sentence of 5 years and 6 months.

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999 S11

PARTIES:

Regina

v

Marcelo Dario MASSEI

FILE NUMBER(S):

SC 70079/2003

COUNSEL:

Mr J Kiely SC - Crown
Mr W Terracini SC - Offender

SOLICITORS:

I V Knight - Crown
S C Kavanagh - Offender

Ex tempore - checked

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

ADAMS J

THURSDAY 2 NOVEMBER 2006

2003/97 - Regina v Marcelo Dario MASSEI

CRIMINAL LIST

SENTENCE

1 HIS HONOUR: On 2 September 2005 I made orders under s11 of the Crimes (Sentencing Procedure) Act 1999 and deferred sentencing the offender for the purpose of continuing to assess his capacity and prospects for rehabilitation in the community and to enable him to demonstrate that the rehabilitation which has so far taken place will continue into the future.

2 When this matter came before me on 4 September 2006 there was persuasive evidence that the offender had indeed demonstrated that the marked improvement in his psychiatric state, to which I referred in my judgment of 2 September 2005, had continued. However, I indicated on that occasion that I wished to have up-to-date psychiatric reports on his condition to confirm this view. I have now been supplied with reports on behalf of the Crown, by Dr Stephen Allnutt, and on behalf of the offender, by Dr Bruce Westmore. They are, I think, substantially to the same effect for present purposes. Merely because his opinion is expressed in somewhat greater detail than that of Dr Westmore, it is sufficient to set out Dr Allnutt's conclusions.

“ Risk Factors
There are a number of risk factors associated with increased risk of harm to others present , which would include; that he has a history of previous violence, that is that he has been found guilty of manslaughter of his wife; he has a history of substance use problems; he has a history of a diagnosis of a major mental illness. Factors associated with increased risk for violence that are absent would include; being young at the age of first violent offence; an absence of relationship instability; an absence of employment problems; an absence of personality disorder or psychopathy; evidence of appropriate adjustment as a child; evidence for precocial behaviours, particularly with regard to legal supervision orders; evidence for insight; an absence of negative attitudes; an absence of active symptoms of major mental illness; an absence of a vulnerability to impulsive aggression; a response to treatment.
Risk Management Issues
In considering whether or not management in the community would be feasible, I believe there is sufficient evidence to be of the view that the offender can be adequately and safely managed within the community environment – he has been in the community since July 2005, there has been no evidence of relapse, he has remained compliant and there has been no evidence of aggressive behaviour.
There is a low/moderate probability of risk of exposure to destablisers; the most significant destabiliser in his case would be substance abuse and/or discontinuation of his medication. I believe, however, that these two probable triggers for mental illness can be adequately managed.
I believe the probability for ongoing personal supports is high – his sister remains involved with him, he continues to engage in recreational activities and continues to enjoy social supports.
The probability for compliance to remediation attempts is high – he has continued to pursue treatment, has maintained compliance with his antidepressant and intends to continue to maintain compliance.
The probability of decompensation under stress is moderate; he has a vulnerability to depression when under stress, however, as long as he remains compliant with his antidepressant medication this would attenuate against any further deterioration.

Synthesis
Overall, I believe he falls into a group of people for which there is low cause for concern for aggression to others in the short to medium term if he remains in his current environment, avoids substances and follows psychiatric advice. I also believe that currently he falls into a group of people for whom there is low cause for concern with regard to self-harm. He also falls into a group of people with low risk for relapse to substance abuse, non-adherence to legal sanctions or readmission to psychiatric hospital.
Early Warning Signs
There are a number of clinical signs that would herald impending deterioration in his mental state – these would include emerging symptoms of depression such as reduced sleep, appetite, energy, concentration and motivation; social withdrawal; discontinuing of medication; and commencement of substance use. Should any of these behaviours or symptoms become manifest he would need to consult with a psychiatrist as soon as possible.”

3 Both doctors consider that it to be desirable that the offender should continue for some time to be seen regularly by an appropriately qualified person, either a psychologist or a psychiatrist.

4 Having regard to the course that I propose to take I intend to order supervision of the offender by the Probation and Parole Service during the remainder of his parole period and require the Service to ensure that appropriate arrangements are made for regular psychiatric or psychological consultation as recommended by the psychiatrists.

5 The facts of this tragic matter are sufficiently set out in my earlier judgments and I do not intend to repeat them here. I am satisfied that this is an unusual case in which the otherwise apparently low non-parole period which I intend to impose, and which represents the term of imprisonment already suffered by the offender, is sufficient. I point out that, at all events, that period is not a trivial one. It was served in maximum security as a remand prisoner. Accordingly, many of the programmes available to sentenced prisoners were not available to the offender. It is generally considered that a period on remand in a maximum-security prison is significantly more harsh than the same period served by a sentenced prisoner even in a maximum security prison.

6 In my view, an appropriate overall sentence considering the culpability involved in this crime, which was substantially lessened by the extreme character of his then psychiatric state, is a term of six years.

7 It is unnecessary to rehearse the frequent statements by the Court of Criminal Appeal concerning the inappropriateness of applying to offenders like this offender the principles of general deterrence. In some cases this amelioration is wholly or partly qualified by the need for specific deterrence. However, in this case I do not think that special emphasis need be given to this element in light of the excellent progress that the offender has made since he committed his crime.

8 This is plainly a case where a utilitarian discount would be appropriate. However, I am concerned that there be continuing supervision for a significant period of time to ensure that the present satisfactory situation is maintained. For this reason I propose to adjust the utilitarian discount which would otherwise be expected to a period of six months. I note that Mr Terracini SC for the offender did not oppose this course.

9 The consequence, therefore, is that the offender is sentenced to a non-parole period of 2 years 9 months and 14 days commencing 30 September 2002 and ending 13 July 2005. The balance of the term is 2 years 8 months and 16 days making an overall sentence of 5 years and 6 months.

**********