Regina v Moore

[2006] NSWSC 1369

CITATION:	Regina v Moore [2006] NSWSC 1369 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	6/11/06, 9/11/06, 8/12/06
JUDGMENT DATE :	15 December 2006
JUDGMENT OF:	Bell J at 1
DECISION:	Sentenced to a non-parole period of two years to date from 8 November 2005. The non-parole period will expire on 7 November 2007, on which date you will be eligible for release on parole. I specify a balance of sentence two years six months to date from 8 November 2007. The sentence will expire on 7 May 2010
CATCHWORDS:	Sentence - provocation/manslaughter
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Hill (1981) 3 A Crim R 397
PARTIES:	Regina Kenneth Duncan Moore (Accused)
FILE NUMBER(S):	SC 2006/1469
COUNSEL:	F.D. L Holles (Crown) D.N. Stewart (Accused)
SOLICITORS:	S Kavanagh Ross Hill & Associates (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Friday 15 December 2006

2006/ 1469 Regina v Kenneth Duncan Moore

JUDGMENT

1 BELL J: On 6 November 2006 the offender, Kenneth Duncan Moore, was arraigned on an indictment that charged him with the murder of Darren Frank Tyrrell at Taree on 8 November 2005. He pleaded not guilty to the charge of murder but guilty to the manslaughter of the deceased. The Crown accepted his plea in full discharge of the indictment.

2 The offender caused the death of the deceased by shooting him five times with a sawn-off .22 calibre rifle. The offence was committed at around 1.00 pm on a weekday afternoon, the deceased was standing near the doorway to one of the units in a complex of units at which he and the offender both resided. The offender was approximately three to four metres distant from the deceased at the time he fired the shots. The probability is that the first two rounds struck the deceased in his left flank, causing him to fall to the ground, and that the next three rounds were fired as he lay on the ground. They entered his back.

3 The Crown’s acceptance of the offender’s plea to the lesser charge of manslaughter was a realistic acknowledgement that at trial it could not establish that the offender was not acting under provocation at the time he fired the shots.

4 An agreed statement of facts was tendered at the sentence hearing along with a large number of statements that formed part of the Crown brief. Counsel for the offender directed my attention to the contents of several of the statements in support of his submissions concerning the degree of the provocation to which his client was subject. My factual findings incorporate material drawn from the statements to which I was directed.

5 The offender is a 72 year-old man of unblemished character. The deceased was aged 41 years. Both men had been living in Department of Housing units located in Frances Street, Taree for a number of years. The deceased was a drug user who was on a methadone program at the time of his death. Analysis of the deceased’s blood established that at the time of these events he had taken both illegal drugs and illegally obtained medication, including amphetamines, methamphetamine, Diazepam, Nordiazepam, Oxazepam and Temazepam. It appears that the deceased was also suffering from a psychiatric condition. He was in the habit of cadging cigarettes and small amounts of money from other residents of the complex and his behaviour had been the subject of complaint by a number of the other tenants.

6 The offender was caring on a day-to-day basis for an elderly alcoholic female tenant, Maureen, who suffers from a degree of intellectual handicap. He was in the habit of driving her into town to attend to her banking and shopping. He cooked her meals and generally kept an eye on her.

7 On the afternoon of 2 November Maureen came to the offender’s unit in a distressed state telling him that she had lost the key to her unit. She was holding her keys in her hand. It was apparent that the door key was unlikely to have come away from the key-ring by chance. The offender questioned Maureen and learned that the deceased and a young woman had called to her flat earlier that day. The young woman had insisted, over Maureen’s protests, that she would help her to make her bed. The deceased had been left alone in the living room where the keys were located. The offender believed that the deceased had stolen Maureen’s key by means of this ruse. He confronted him with the allegation. The deceased denied wrongdoing (although subsequently he produced the key). There was verbal exchange between the two men.

8 Later that day there was a confrontation between the two outside the offender’s unit. The deceased approached the offender holding a cricket bat in one hand and a metal pipe in the other. The offender picked up a baseball bat and managed to disarm the deceased, who retreated, saying, “I’m gunna get three heavies on you and wreck your place and your car”. Later that day the offender found that plants in his garden had been pulled out. This was not the first time that the garden had been vandalised. He blamed the deceased for it.

9 Later still on this same day the deceased appeared outside the offender’s unit holding a shovel. He called on him to come outside and have another go. The offender was restrained by friends from responding to the invitation. He telephoned the police and asked for their assistance. After this he took up a position at the front of his unit, keeping a lookout. After a short time the deceased reappeared, armed with two half-bricks with which he threatened the offender. The offender backed off and returned inside his unit. After a time the offender went outside again and there was a further confrontation during which the deceased produced a large brown glass paperweight. The two men exchanged words and the offender told the deceased that the police were coming and that they would sort things out.

10 In an interview with the police, which was conducted within two hours of the shooting, the offender described these events, saying that he had been exhausted by the time of the confrontation with the paperweight and that he, “just hoped somebody’s going to come and help me”.

11 Constable Holborow received a telephone call from the offender at about 6.25 pm on 2 November. The offender sounded quite upset and told him “you’d better get a car up here because somebody is going to get killed if you don’t”. A crew was dispatched to the Frances Street units and the police took a complaint from the offender.

12 In the period between the altercation on 2 November and the fatal shooting on 8 November, the offender attended at the Taree Police Station on a number of occasions asking what action was to be taken against the deceased arising out of his complaint. He was informed that an apprehended violence order could be obtained for his protection but that it was necessary for the police to first locate and interview the deceased.

13 The offender also sought assistance over this period from the Chamber Magistrate, a legal telephone helpline, and the Department of Housing. It is clear that the offender entertained genuine fears for his safety arising out of the deceased’s conduct towards him.

14 Lesley Bird is a friend of the offender. She made a statement in the course of the investigation of the shooting and she gave oral evidence on the offender’s behalf at the sentence hearing. Ms Bird visited the offender on the afternoon of 7 November. He appeared to be “stressed”. He was speaking in a very excited manner, gesticulating with his arms and complaining that he could not get any help from the police. He told her that he had been to the police station every day to get an AVO and that he was unable to get help. He counted out the days on his hand, saying, “one, two, three, four, five, six days and nothing’s done”. Ms Bird described the offender as being “like a desperate man. He was just, just didn’t know where to turn”. It seemed to her that the offender felt trapped: he complained that the Department of Housing would take no action until he had an AVO and yet the police were unable to serve it. Ms Bird understood that he also felt trapped by his sense of obligation to remain in the units in order to look after Maureen. He told her that the deceased had threatened him with two bricks and he also told her that the deceased had threatened to set a renowned local identity on to him.

15 When Ms Bird left the offender’s home on the afternoon of 7 November he was cooking Maureen’s dinner. He walked Ms Bird to the front door, telling her of his concern that the deceased might damage his car. Ms Bird was worried about the offender. She thought that he might snap. In oral evidence she put it this way:

Well, I’ve seen – having a sick son, I’ve seen a lot of people with mental illness at the Mental Health Unit and that, and I just felt that Ken just couldn’t cope any more; he was at a point where, I didn’t know what he would do, but I just felt he couldn’t cope in the normal manner. He just – just – well, I think everyone gets to breaking point under extreme pressure at times, and I felt he was at breaking point.

16 In the early hours of 8 November the deceased stole a washing machine from neighbouring premises. The theft was reported to the police who called to the Frances Street units. At around this time the offender went out to his car and saw that his tyres had been deflated by someone who had placed matchsticks in the valves. The offender was convinced that the deceased was the culprit. He was fearful that the deceased may have tampered with the brake lines. He telephoned the NRMA to arrange for an inspection of the car.

17 The offender saw Senior Constable Aldous who was at the units looking for the deceased. He went up to him and demanded to know what the police were going to “do with this bloke”. Constable Aldous told him that the deceased was wanted in connection with the theft of the washing machine. The offender said he wanted him charged over the damage to his car. Constable Aldous asked if the offender had seen the deceased deflating the tyres. During the course of this discussion the offender said, “I’m going to kill him okay, don’t worry about anything, I’ll kill him, he’s picking on everyone, I’ve had him annoying all of us”. Constable Aldous responded, “Ken don’t do anything silly, I think he was charged last night, I will ring you”.

18 Constable Aldous was aware of the offender’s age and background and was satisfied that his remarks were off the cuff comments that did not convey any serious intention. I accept that is so. At the time of the conversation I am satisfied that the offender was in a state of considerable distress and turmoil as the result of the deceased’s conduct and his perception that no action had been taken arising out of the investigation of the earlier incident. It is to be observed that on 8 November the police were intending to interview the deceased over the incident on 2 November and to arrange for the issue of an apprehended violence order for the protection of the offender.

19 At around 9.50 am on 8 November Allan Sheldon, an NRMA patrolman, attended at the Frances Street units and inspected the offender’s car. The offender asked him to check the brake lines. Mr Sheldon saw a machete on the front seat of the car. He picked it up and moved it, saying, “You’d better get rid of that. If you get caught with it you’ll get in a lot of trouble”. The offender responded, “When you got a bloke half your age out to get you and the police won’t help, you have to do what you can to protect yourself”. The offender told him that he had taken out an AVO on a bloke, and “I asked the police if they had served it on him yet they said it was a night duty’s job. They said they saw him up at the methadone clinic earlier”. Mr Sheldon said that the offender was looking around all the time and that it had appeared to him that the offender was petrified of someone.

20 Constable Aldous arrested the deceased, at the home of the local identity to whom Ms Bird referred, on the morning of 8 November. The deceased was charged with the theft of the washing machine and with the assault on the offender. While the police were attending to the formalities associated with the charging process, the offender arrived at the police station. Constable Reynolds, who was one of the officers with whom he had spoken at the units earlier that day, took him to an interview room and explained that the deceased had been charged with the assault. She told him that the officers who were involved in the investigation were arranging to take out an AVO for his protection. She explained, “that means that once it is served on him, he cannot harass or intimidate you anymore and if he does we can lock him up for it”. The offender responded, “just like that?” and Constable Reynolds said, “Well, it would be your word against his, however if you have other witnesses around that would help with your story”.

21 The offender left the police station telling Constable Reynolds that he was going to the Department of Housing to see if they would do something about kicking the deceased out of the flats. Constable Reynolds considered that the offender had calmed down during the course of her discussion with him. He was no longer sighing and shaking his hands about as he had been doing earlier that morning. He made no threats against the deceased and he appeared to be satisfied with the action that the police had taken.

22 Some time around midday the deceased was released from police custody and it appears that he went to the Taree Drug and Alcohol Clinic. Staff at the clinic refused to give him his methadone because of some alleged misconduct the previous day. The deceased left the methadone clinic in a state of distress, threatening self-harm.

23 The deceased returned to the Frances Street units at around 1.00 pm. He saw the offender and yelled out to him that he was a dog.

24 In his interview with the police the offender described the immediate events that led up to the shooting in this way:

“He come from, he come from his house around at the back of my place and stood out there and he walked past me, calling me all the names, and I didn’t do a thing about it, I just looked at him. And he went over to the neighbour, Alex place, yelling out at him, and I snapped. (A 535).

25 The offender went to the laundry of his unit and picked up a rifle, which he had owned for many years. He approached the deceased who was standing near the door of one of the units and shot him in the manner that I have described.

26 The deceased died at the scene. The offender went inside his unit and telephoned the police, saying “there is a body at 21 Frances Street”. Next he telephoned his friend, Kenneth Haynes, to whom he said, “I’ve shot him and he won’t trouble us anymore”. He told Mr Haynes that the police were on their way. Mr Haynes immediately came over to the Frances Street units. The offender and Mr Haynes sat on a bench outside the units and awaited the arrival of the police. The offender kept saying words to the effect, “He won’t annoy anybody anymore”.

27 The offender was cooperative with the police. During his interview with them he gave an account of the events leading up to the shooting that was consistent with the facts that I have set out. He gave a more detailed history of the relations between himself and the deceased, dating back some 18 months. It is sufficient to note that the offender told the police that the deceased had over this period:

Just kept needlin’ me and I kept, brushin’, I, okay, okay, just keep away from me keep away from me for God’s sake. Look, I’ve got my own garden there. And when I stood up to him, he did kick all the flowers another time but then, then when I approached him about it he says, “I didn’t do that”, that’s when he come with the umbrella ‘cause I approached him. He says anyone walks past there can do that. I says, “come on, I haven’t got an enemy in the bloody world, you know when you’ve got an enemy, I haven’t got an enemy in the world” (A 104).

28 The offender told the police that he had purchased the rifle with which he had shot the deceased at Fotheringhams Hotel shortly before the shooting. This was not a truthful account. As the offender told Dr Westmore he had obtained the rifle many years prior to this incident. He had kept the rifle and ammunition at his unit. He was not licensed to own a firearm. This tragedy would not have occurred had he not been in possession of a gun.

29 Dr Westmore, a psychiatrist, interviewed the offender at the Parklea prison on 31 October at the request of the offender’s solicitor. He obtained a detailed history of the build-up of incidents, which had led to the offender feeling “on edge” and frightened all the time at the time of the shooting. He told Dr Westmore that in the immediate lead up to the shooting he had been trying to fix the damage that he believed the deceased had done to his garden, and that the deceased approached him, saying words to the effect, “who let your tyres down this morning?” He had got a shock because he had been told that the deceased was in custody. He told Dr Westmore, “everything sort of hit me, I just broke, he [Darren] came round the front and started yelling at me”. He had then taken hold of the gun that he kept in the laundry. He went on to say:

But with the stress I just grabbed it for some reason, all I wanted to do was frighten him and when I got out there and saw him bouncing around I felt, not again. I got all nervous and I let five rounds into him. I think it was a nervous thing because the sixth one jammed with nerves. I came out of it then, I couldn’t remember it. I was so stressed, depressed, looking at a bloke who was supposed to be in custody. I was sort of relieved, what have I done?

30 Dr Westmore comments that the offender was the middle of three children and that he had been raised as a happy child, who had not been exposed to violence or abuse. He attended school to the age of 15 years. He got on well with the other students and with his teachers and had no disciplinary problems. After leaving school the offender completed an apprenticeship as a carpenter and joiner and he had worked in this trade all his life. He was employed at the Marrickville Hospital for 17 years. Following this he worked in the carpenters shop at the Mount Panang Juvenile Centre for five years prior to retiring. As a young man the offender had undertaken National Service.

31 The offender married at the age of 21 and there are three children of this union. The offender gets on well with all of them. The marriage ended after 14 years and the offender remained single for around eight years. He then married for the second time. There were two children of this marriage with whom he also gets on well. This marriage also came to an end after around 14 years.

32 Dr Westmore considers that it is probable that the offender suffered transient episodes of depression in response to the stress of his relationship with the deceased. The offender does not have an anti-social personality disorder. He does not suffer from any psychiatric or psychological difficulties, or from drug or alcohol abuse problems. Dr Westmore observes that the offender functions in the higher range, which he considers to be a reflection of his intact personality.

33 Dr Westmore comments on the statements that the offender made in the lead-up to the shooting, including that he would kill the deceased. Dr Westmore observes that, “even though that was the ultimate outcome, his statements may have been made as a reflection of his levels of distress and in his attempts to impress others about his levels of distress in relation to the deceased”. I consider that is probable.

34 In Dr Westmore’s opinion, the risks of this offender re-offending are negligible if not non-existent. I accept that is so.

35 The Crown obtained a psychiatric report from Dr Allnutt who interviewed the offender at the Parklea Prison on 26 November 2006. The offender gave Dr Allnutt a detailed and consistent history of the lead up to the shooting. He told Dr Allnutt that until about three months prior to the offence he had avoided the deceased and that his thoughts of him were that he was, “just a neighbour from a different generation”. He was aware that others complained about the deceased making a nuisance of himself; stealing and breaking into their houses. The deceased struck him as a “game person”, who did not care. The community used to talk frequently about the deceased. About three months before the shooting he had been troubled by the deceased’s demands on Maureen: for cigarettes; to use her phone or to borrow money. Maureen would complain to him that, “someone is coming into my house and using my things” and the offender did not like hearing of it.

36 The offender told Dr Allnut that he had felt frightened, nervous and tense in the period between 2 and 8 November. He had difficulty sleeping and his appetite was reduced. He felt intimidated, it was as though someone was watching him all the time.

37 The offender told Dr Allnutt that he had bought the gun in 1976 and that he had never held a license for it and did not know that one was required. He was unable to explain why he had lied to the police about the circumstances in which he obtained the gun at the time of the interview. He said he had not told other lies in the interview. I accept that is so. I interpolate that in the course of submissions the Crown Prosecutor noted that the rifle was sawn off and that, in the opinion of the police officer who examined it, it had been recently cut down in this fashion. It is not the Crown case that the killing of the deceased was premeditated. It is not apparent that there is any significance to the fact that the weapon had been cut down. The offender told Dr Allnutt that he had done this some months prior to the shooting so the gun could be fitted in a toolbox. I accept that account.

38 Dr Allnutt commented on the clinical notes in the Justice Health file. Shortly after coming into custody the offender was unshaven, dishevelled and anxious and appears to have entertained thoughts of self-harm. He was assessed as a high risk of suicide at that time. These thoughts had receded by 7 December. By July 2006 he was being treated with an antidepressant medication. At that time he was suffering from anxiety and reported difficulty in coping with his cell placement.

39 Dr Allnutt noted that the offender revealed some mild, probably age-associated, short-term memory difficulties. He considered that the offender was manifesting symptoms of an adjustment disorder with a depressed mood. Neuropsychological assessment manifested a pattern of cognitive impairment consistent with mild frontotemporal impairment. A neuropsychological report was suggestive that the offender’s judgment, memory and information processing is impaired and that this could increase his vulnerability to have “a high intensity of emotions”.

40 Dr Allnutt states that the offender expressed remorse and regret for his offence and that he does not manifest attitudes that condone violent offending or antisocial behaviour. From a psychiatric perspective, the offender is not assessed as manifesting any major mental illness. Dr Allnutt expresses concern about the cognitive difficulties that the offender manifests which, he observes, could deteriorate further over time. In Dr Allnutt’s opinion the offender’s incarceration is made more difficult because it is the first time he has been in custody and because of his age. He recommended that the offender be referred to a neurologist for further assessment of his developing dementia. He considers that the offender would benefit from regular consultation with a psychiatrist who has expertise in the field of geriatric psychiatry. Dr Allnutt considers that at the time of his release the offender will require careful consideration of placement in housing that is supportive and where there is access to suitable specialist services.

41 The Crown also arranged for the offender to undergo forensic neuropsychological assessment. A detailed report was prepared by Dr McMahon, a psychologist. Dr McMahon concluded that the offender suffers from a dementia process, which is currently in the mild range and is most likely of the fronto-temporal type. In his opinion, the offender suffers mild cognitive impairment that may contribute to poor judgment and memory disturbance due to impaired information processing and this would be further exacerbated by “high intensity of emotions”.

42 The offender moved into public housing after the break-up of his second marriage. He is an active member of the community. He plays with the Taree Council Band and he teaches dancing. He is widely liked. Three witnesses, each impressive individuals, gave evidence on his behalf at the sentencing hearing. On each occasion when the matter was before the court a very large number of members of the community attended the court in an apparent demonstration of their support for him.

43 Lyndon Thrift is a retired Minister of the Seventh Day Adventist Church. He had come to know the offender through their mutual friend, Eric Peatman who died of cancer not long before these events. In oral evidence Mr Thrift said of the offender that he was “the absolute essence of kindness to this friend of mine”. Whenever Mr Peatman needed anything the offender had been there, ready and willing to do anything asked of him. He provided practical and continuing assistance to Mr Peatman throughout his illness; transporting him to medical appointments and the like. In Mr Thrift’s opinion, the offender is a straight-forward type of man who is kindly and caring. Mr Peatman died two to three weeks prior to the shooting. Mr Thrift described the death as a painful one, which had affected the offender who had ceased to be the jovial, placid fellow whom he knew.

44 I have already referred to aspects of the oral evidence given by Ms Bird. She had met the offender through their mutual interest in dancing. She described him as being a very kind man who was always willing to help people. Ms Bird worked in the local opportunity shop. From time to time the offender would bring Maureen into the shop to buy clothes. She was aware of Maureen’s alcohol problems and of the care that the offender provided to her.

45 Ruth Bohnenkamp has known the offender for around eight years. She, too, met him through social dancing. Over time they had become good friends and would frequently travel to towns up and down the mid north coast to attend dances. Ms Bohnenkamp described the offender as a person with great empathy for others. She put it this way, “I have never come across anybody that cared so much. I used to say maybe he should care a little less sometime and care for himself” (T 17.29-31). In the three to four months before the shooting Ms Bohenkamp had observed that the offender had been spending a lot of time caring for Eric Peatman. She was aware that the offender was preoccupied with problems he was having with the deceased in the three to four weeks before the shooting. On one occasion he had shown her his garden, pointing out that newly planted spring flowers had been ripped up and thrown around. He was a keen gardener and he appeared to be distressed by this incident. This was about two weeks before the shooting.

46 I accept all that the witnesses had to say.

47 The maximum penalty imposed for the offence of manslaughter is 25 years imprisonment.

48 Sentencing for manslaughter is a difficult exercise in a case where the offender’s liability for what would otherwise be murder - because the act causing death was done with the intention of killing or inflicting grievous bodily harm - is reduced to manslaughter because it was done while under provocation. In this respect I note the observations of Street CJ in R v Hill (1981) 3 A Crim R 397 at 402:

The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act 1900 (NSW) and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party.
In such a case as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life.

49 The Court has received victim impact statements prepared by Mrs Tyrrell, the mother of the deceased, and Joanne Kitcher, the sister of the deceased. Each statement serves as an eloquent reminder of the value of the human life that has been lost. The Tyrrell family has known tragedy, their eldest son, Shane, died at the age of 33 years. At around that time Mrs Tyrrell was diagnosed with cancer. She speaks of the support that she received from Darren throughout that difficult time. Darren not only helped her by doing household chores, he was her companion. They had happy times together watching sport on television. Mrs Tyrrell comments that Darren had been depressed in the period prior to his death and that he had been taking extra medication, which in combination with his usual medication, made him argumentative. This was not a side of him that she or her husband, Ern, ever saw. To them Darren was a lovable and caring person and it has broken their hearts to think that his life may be remembered by his last few months, when he was not himself.

50 Joanne Kitcher writes of her distress over the past 12 months since her brother’s death. She and her children have missed him greatly. She observes that, “Darren had his moments like we all do. But in all that I loved him with all my heart. He was so generous”. The Court extends its sympathy to Mr and Mrs Tyrrell and to Joanne Kitcher and her family in their deeply felt loss.

51 I am mindful of the observations of Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76 at 85-86 concerning the use to be made of victim impact statements in cases of unlawful homicide. It is the approach that I adopt in this case.

52 The offender is an elderly man of impeccable character, who has made a positive contribution to the community by his voluntary care for others. The offence occurred at a time when he was still considerably affected by the death of Mr Peatman.

53 I consider it probable that the early degenerative changes commented upon by Dr McMahon and Dr Allnutt provide some explanation for the offender’s loss of self-control on this occasion. This is a circumstance that mitigates his culpability.

54 The offender is now aged 72 years and he appears to suffer from a mild degree of hearing impairment. Dr Allnutt considers, and I accept, that the experience of imprisonment for a man of his age is likely to be more burdensome than for a younger prisoner.

55 It is necessary for the Court in sentencing for this offence to have regard to the purposes of punishment that are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act). Pursuant to s 5 of that Act, a court is enjoined not to sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. Taking into account that this offence involved the felonious taking of a human life I have concluded that no sentence other than imprisonment is appropriate.

56 I have had regard to the provisions of s 21A of the Sentencing Procedure Act.

57 The circumstance that the offender used a firearm and the degree of violence associated with the repeated firing of the weapon at the unarmed deceased is a matter that tends to increase the gravity of the offence. However this is significantly reduced by the provocation that, over a sustained period proved considerable. There are a number of powerful mitigating factors to which I have referred. I record my acceptance that the offender is remorseful.

58 From the outset the offender admitted to shooting the deceased and made full admissions to the police. At his committal for trial his counsel addressed the Magistrate on the inability of the Crown to negative provocation. It was never in issue that the offender would plead guilty to manslaughter on the basis of provocation if the Crown were prepared to accept that plea. A formal offer was made three weeks prior to the matter coming on for trial. I was informed the Crown first accepted the offer on the Friday preceding the date fixed for trial. In my view the appropriate discount for the offender’s plea of guilty is one of 25 per cent.

59 The Crown joined with counsel for the offender in submitting that in this case there are special circumstances for the purposes of s 44(2) of the Sentencing Procedure Act 1999 that justify a departure from the statutory proportion between the non-parole period and the balance of term. I am satisfied that is so. The offender will have lost his Department of Housing accommodation. For the reasons touched on in the reports of Dr Allnutt and Dr McMahon, he will need assistance in being resettled in the community upon his release.

60 Kenneth Maxwell Moore, I convict you of the manslaughter of Darren Tyrrell and for this offence I sentence you to a non-parole period of two years to date from 8 November 2005. The non-parole period will expire on 7 November 2007 on which date you will be eligible for release on parole. I specify a balance of sentence of two years and six months to date from 8 November 2007. The sentence will expire on 7 May 2010.

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05/02/2007 - File No. missing from coversheet - Paragraph(s) 0