Regina v Risati Laupama

[2001] NSWSC 1082

CITATION:	Regina v Risati LAUPAMA [2001] NSWSC 1082
FILE NUMBER(S):	SC 70063/00
HEARING DATE(S):	20/4/01, 7/6/01, 27/7/01
JUDGMENT DATE:	7 December 2001
PARTIES :	Regina Risati LAUPAMA
JUDGMENT OF:	Bell J at 1

COUNSEL :	Nicolas Harrison (Crown) Christopher Bruce (Accused)
SOLICITORS:	S E O'Connor Legal Aid Commission of NSW - T A Murphy
CATCHWORDS:	Sentence
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Regina v Barnett (unreported) NSWCCA, 16 February 1994 Regina v Blacklidge (unreported) NSWCCA, 12 December 1995 R v Chayna (unreported) NSWCCA, 8 June 1993 Regina v Dawney [1999] NSWSC 944 Regina v Engert (1995) 84 A Crim R 67 Regina v Grierson (unreported) NSWCCA, 28 October 1996 Regina v Letteri (unreported) NSWCCA, 18 March 1992 Regina v Li [2000] NSWSC 1088 Regina v Previtera (1997) 94 A Crim R 76 R v Woodland [2001] NSWSC 416 R v Barton [2001] NSWCCA 63 Veen (No. 2) v The Queen (1988) 164 CLR 465
DECISION:	Twelve years imprisonment to date from 30 December 1999; Non-parole period of eight years; First date eligible for consideration for release to parole is 29 December 2007

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IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

70063/00
BELL J
7 December 2001

REGINA v Risati LAUPAMA

Judgment

: On 20 April 2001 the prisoner was arraigned before me on an indictment charging him with the murder of Tayla Lee Parker on or about 30 December 1999 at Cabarita Beach. To that indictment he pleaded that he was not guilty of murder, but guilty of manslaughter. The Crown accepted that plea in full discharge of the indictment. The basis of the acceptance of the plea to the lesser count was an acknowledgment by the Crown that at the time of the killing the prisoner was suffering from an abnormality of mind such that his responsibility for his act was impaired to a degree so substantial as to warrant his liability for murder being reduced to manslaughter.

2 The prisoner was aged twenty-nine years at the date of the offence. The deceased was the five year old daughter of his former de facto wife, Kelly Lee Parker. At around 1.00am on the morning of 30 December 1999 the prisoner carried Tayla from her bed to a pergola at the rear of the family home. He had placed three lengths of nylon rope over the struts of the pergola. Two had been tied at the end so as to make a noose in each case. He hanged Tayla from one of these. He left her body hanging suspended from the noose until later that morning when her mother got up and asked after her.

3 The prisoner met Ms Parker in January 1995 when Tayla was aged about six months. They commenced living together in mid-1995. There were three children, the product of their union; Alex born in March 1996, Kuinita born in August 1998 and Nakita born in October 1999.

4 Kuinita died as the result of sudden infant death syndrome, aged nine weeks, in October 1998. It is apparent that her death was the source of great distress, both to her mother and to the prisoner.

5 The relationship between the prisoner and Ms Parker was one characterised by frequent separations. Their final separation was in late April 1999. Following this Ms Parker moved from Sydney to Cabarita Beach on the far north coast. She took her two children, Tayla and Alex with her. She was at the time pregnant with Nakita.

6 The prisoner visited Ms Parker at the Cabarita Beach home on three occasions. It appears that he was anxious to effect a reconciliation. Ms Parker did not wish the relationship to continue, although, as she explained to the police, she had continued to have strong feelings for him as the father of her children. The two had agreed that the prisoner would spend the Christmas period at Cabarita Beach with the family. They would all then drive to Sydney as Ms Parker had made plans to take the children to visit friends there over the Christmas break. On the morning of 24 December Ms Parker collected the prisoner from the Bus Depot at Tweed Heads. They went back to the Cabarita Beach home and made plans for Christmas. Later that day they went shopping and bought presents for the children.

7 On 26 December their son, Alex, was admitted to Tweed Heads District Hospital as the result of a medical condition from which he had suffered since birth. He remained in hospital from Boxing Day until 29 December. During that period the prisoner stayed with him continuously. Ms Parker spent the days at the hospital with Alex, but returned at night to look after the other children. The trip to Sydney was deferred until following Alex’s discharge from hospital.

8 Alex was discharged on the afternoon of 29 December. That evening Ms Parker made dinner and then packed the children’s clothing in preparation for an early departure the following morning. She woke at around 4:00 am and got up and heated Nakita’s bottle. She walked into the kitchen and saw a notebook on the kitchen bench. The first few lines in the notebook were written by the prisoner and addressed to herself and Nakita. The note was signed purportedly by the prisoner, Tayla and Alex. Ms Parker took no notice of it at the time. She saw the prisoner standing in the backyard and called to him, asking that he get the children out of bed and dress them. He responded, telling her that Tayla was already in the car. Ms Parker told him to bring Tayla inside and dress her for the trip. Shortly thereafter the prisoner approached her in the lounge room carrying a carving knife and a length of blue nylon rope. The blade was pointed in Ms Parker’s direction. He said to her forcefully “get in the bedroom and get dressed”. She complied and the prisoner followed her into the room, locking the door behind him. Understandably Ms Parker was scared. She dressed the baby and herself, while the prisoner dressed Alex. She said to him “where is Tayla, what have you done to her?” to which the prisoner replied “she is gone”.

9 The prisoner directed Ms Parker to go and get into the car. She had the baby in her arms and Alex beside her. They walked to the car and Ms Parker saw Tayla lying on the bonnet. At the time she believed Tayla to be asleep. She put the baby in the baby’s seat, while the prisoner put Alex in the booster seat. Ms Parker got into the driver’s seat of the vehicle, while the prisoner went to the front of the car and picked up Tayla. He placed the child’s body on the rear seat of the vehicle. Ms Parker put her hand on Tayla’s leg and realised that she was dead.

10 The prisoner, holding the knife in his hand, directed Ms Parker to drive the car. He told her they were going to Sydney.

11 Ms Parker did as she was directed and commenced the nightmare journey with her baby, infant son and dead daughter together on the back seat. Among Ms Parker’s concerns was the anxiety that Alex, then aged three and a half, would come to realise that Tayla was dead beside him. She suggested to the prisoner that they should take Tayla to the hospital so that she could be placed in the morgue. The prisoner replied “no, I’m not that stupid. We will drop her off somewhere on our way”. As they drove along the highway, just after Brunswick Heads, the prisoner instructed Ms Parker to turn off down a side road. They travelled to an isolated place where the prisoner instructed her to stop the vehicle. He demanded that she hand the car keys to him. He then picked up Alex and put him in the front of the vehicle, next to Ms Parker. He handed her a jacket, instructing her to put it over Alex’s head. He then told her to say goodbye to Tayla. He picked up Tayla’s body and carried it to some nearby bushes, where he left it. He then returned to the car and picked up Alex and put him back in the booster seat. They resumed their trip to Sydney.

12 During the drive Ms Parker recalled the prisoner as constantly speaking to her about their relationship. She had little recall of the contents of the prisoner’s remarks. She did remember that he had said words to the effect “I should take Alex and Nikita’s lives as well so that I can leave you to be free to go out and spend all your time with friends and family”.

13 Ms Parker suggested that the prisoner should give himself up at the Coffs Harbour Police Station. He said he would not do this because he would never see his children again. They stopped at a service station in Coffs Harbour to get petrol. Before leaving the car to pay for the petrol the prisoner demanded that Ms Parker hand the car keys to him.

14 They stopped again at McDonalds at Kempsey to buy some food for Alex. Again, the prisoner took the car keys from Ms Parker before leaving the car. He took Alex to the toilet. Ms Parker looked around and saw a couple whom she approached, asking if they had a mobile phone. They gave her a strange look. She had no time to explain her predicament. She saw the prisoner walking back to the car. They resumed their journey.

15 At about 12:30 pm they reached Bulahdelah. Ms Parker pulled into a service station telling the prisoner that they needed more petrol. Again, she was required to hand the car keys to the prisoner before he left her to pay for the petrol. He returned and handed the keys to her. Then, as an afterthought, he asked if she wanted a drink. She said that she did. He walked back towards the service station shop and Ms Parker immediately drove off. She stopped at a property just outside of Bulahdelah and approached the occupant telling her that her daughter had been strangled and asking that she telephone the police.

16 The prisoner obtained a lift from Bulahdelah with a truck driver. He gave an account that he had been travelling with a group of friends who had left him at the service station. He said that he was getting married the following week and that it had been a buck’s party joke. He was arrested later that day and gave a false name to the police. On legal advice he initially declined to speak to the police. Subsequently he participated in a lengthy electronically recorded interview and in a re-enactment of events at the Cabarita Beach home. He was co-operative on these occasions.

17 I am asked to take into account in sentencing the prisoner for the manslaughter of Tayla Lee Parker a charge that he detained Kelly Lee Parker for advantage. This charge is brought pursuant to s 90A of the Crimes Act 1900 (NSW). It is not contended that the kidnapping of Ms Parker caused substantial injury. Thus, the maximum sentence which might have been imposed had this offence been dealt with on indictment is one of fourteen years imprisonment. I am asked by the prisoner to take this offence into account in accordance with the provisions of s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

18 The kidnapping of Ms Parker is itself an objectively serious crime. She was abducted at knifepoint. The circumstances were terrifying and persisted over the hours between around 4.15am and 12:30pm when she finally made good her escape. In taking matters into account pursuant to the Crimes (Sentencing Procedure) Act it is appropriate to increase the penalty that would otherwise be imposed in respect of the offence for which the prisoner stands for sentence. The offence on the Form 1 is to be taken into account by giving greater weight to considerations of personal deterrence and to the community’s expectation for retribution in the sentence imposed for the principal offence; R v Barton [2001] NSWCCA 63. In a case such as the present, where the Crown accepts that the prisoner’s mental responsibility for his crime was substantially impaired and where the Form 1 offence is bound up with the principal offence (as I consider this offence to be) less emphasis is to be placed on considerations of deterrence and retribution than would otherwise be the case; Regina v Letteri (unreported) NSWCCA, 18 March 1992; Regina v Engert (1995) 84 A Crim R 67. I should observe that I do not consider that either deterrence or the community’s expectation of retribution to be entirely irrelevant to my task.

19 A victim impact statement prepared by Kelly Parker was tendered and received in accordance with the provisions of s 28 of the Crimes (Sentencing Procedure) Act 1999. In that statement Ms Parker writes eloquently of the impact of Tayla’s death on herself and her family. She observes:

“after someone goes through such an ordeal everyone tells you that you are so strong, but deep down inside you don’t feel real strong. So many people expect that just because it has been a while since you lost your loved one that you are getting over it. The thing people have to understand is that when tragedy strikes a family you never just get over it, it is there for life.”

One of the themes in Ms Parker’s victim impact statement (which is also apparent in the statements that she made to the police in the period immediately following Tayla’s death) is her sense of profound distress and guilt about leaving Tayla’s body in the bushland. She was the one to point out to the prisoner that they could not keep Tayla in the car. She was anxious lest Alex realise that his sister was dead. Generally, Ms Parker expresses feelings of guilt that she brought the prisoner into her daughter’s life. Nothing that the Court says may serve to comfort Ms Parker in her loss. It is to be observed that her behaviour throughout that terrible trip was all that might be asked of a mother. She put to one side her feelings of grief and terror and acted with presence of mind and control in order to protect the living children. The Court expresses it’s sympathy to her and acknowledges her courage.

20 In receiving the victim impact statement I am mindful of the observations of Hunt CJ at CL in Regina v Previtera (1997) 94 A Crim R 76 at 88/87. I approach the reception of the statement with these in mind.

21 The prisoner did not give evidence in the proceedings before me. Such background material concerning his circumstances as was placed before me comes from the reports of two psychiatrists, Dr Delaforce and Dr Westmore. Dr Delaforce was retained by the Director of Public Prosecutions. He interviewed the prisoner at the Silverwater Correctional Centre on 25 February 2001. That interview took place over almost five hours. Dr Delaforce prepared a detailed and helpful report. I take an account of the prisoner’s background drawn substantially from the report prepared by him on 21 March 2001.

22 The prisoner was born in Samoa. As a young man he lived in New Zealand for six years. He came to Australia in 1994. He appears to have performed well at school until he left at the end of Year 10. Thereafter he completed one year of a construction course. He had a history of regular employment.

23 The prisoner has a criminal record of a relatively minor nature. The only matter of significance was his conviction before the Blacktown Local Court on 25 June 1996 on a charge of assault. The victim of that offence was Ms Parker. The prisoner was sentenced to perform one hundred and fifty hours of community service work following this conviction.

24 Dr Delaforce noted that as a child the prisoner had witnessed his father’s repeated violence to his mother. He, too, had been the victim of it. At the age of five or six years the prisoner was the subject of repeated sexual assaults carried out by an adult male cousin. These episodes appear to have had a significant impact on him. At the age of nineteen he was given a hiding by his uncle and thereafter he attempted suicide.

25 The prisoner reported feelings of depression commencing from when he was five or six years of age. Associated with his depression he reported difficulty getting to and remaining asleep. He gave an account of daily thoughts of suicide from an early age.

26 The death of Kuinita had been most upsetting to him and he reported no interest in, or pleasure from, life following that loss.

27 In 1992 the prisoner witnessed a close friend fall from the twenty-fourth floor of a construction site. Around this time it appears that the prisoner was hospitalised and treated with electro-convulsive therapy. In association with this period of hospitalisation he was placed on psychiatric medication for the first time.

28 In the years from the age of thirteen the prisoner reported significant use of both marijuana and cocaine. He was also a binge drinker. It is to be noted that it is not suggested that he was significantly affected by drugs or alcohol at the time of the killing.

29 The prisoner reported a sense of distress following the break up of his relationship with Ms Parker. He was particularly upset about not seeing his children. He felt hurt because Ms Parker’s parents did not accept him. It should be noted that Ms Parker, in a statement made to the police, gave an account that her parents had initially been accepting of the prisoner but that their relationship with him had deteriorated following his assault upon her. That incident occurred when Alex was aged eight weeks.

30 The prisoner said that he had felt anxious while Alex was in hospital in the days leading up to Tayla’s death. He feared he might lose him just as he had lost Kuinita. On the evening preceding Tayla’s death the prisoner sat up after Ms Parker went to bed and watched a video tape of Kuinita’s funeral.

31 The prisoner told Dr Delaforce that he loved Tayla and that he planned to be with her. He had been going to take her body to where Kuinita was buried. He had it in mind to take his own life. Just prior to being apprehended by the police he had purchased a rope with which he intended to hang himself.

32 In the course of his lengthy consultation with Dr Delaforce the prisoner said it had been his plan to kill the other two children as well. He had felt very depressed at the time. He described himself as feeling “like an empty person”. After hanging Tayla he experienced “a beautiful night”. He appears to have fallen asleep. Dr Delaforce offers the suggestion that the prisoner’s experience of calm, following the killing of Tayla, may have contributed to him falling asleep and, thus, not killing the other children or himself.

33 Dr Delaforce gave consideration to the possibility that the killing of Tayla may have involved an element of retribution as a payback for Ms Parker’s separation from him and the taking of the children. He concluded that if such a component was present it was not prominent. The fact that the prisoner planned to kill his biological children reduced somewhat the extent of any contribution of retributive feelings as an explanation for his conduct.

34 Dr Delaforce also reported that the prisoner had said that since being sexually assaulted he had felt like killing himself and someone.

35 Dr Delaforce diagnosed the prisoner as suffering from a major depressive disorder at the time of killing Tayla. Additionally, he considered that the prisoner suffered from post-traumatic stress disorder, social phobia and substance dependence. The social phobia was evidenced by the prisoner’s fear since the age of nineteen or thereabouts of taking part in social activity, talking in public and the like. The post-traumatic stress disorder flowed from the early sexual assault and had continued until the present.

36 In Dr Delaforce’s opinion, the major depressive disorder contributed most to the prisoner’s abnormality of mind at the time of the killing. He observed:

“The severely depressed mind is renowned for impairing judgment and reasoning. The major depressive disorder substantially impaired his capacity to at the time of the killing to understand events, or to judge whether his actions were right or wrong, or to control himself.”

37 In the hours following Tayla’s death the prisoner wrote a letter addressed to “Dear Kelly” ending with the words “love always Tayla and daddy …. see you guys in heaven”. In the body of the letter he said (among other things):

“I took a daughter I was being with her since she was 6 months. Now you try to make her againts (sic) me. She start to hurt me inside no one can see inside. Painful, hurts, stress, depress for me. I rather take my daughter with me better than agure (sic) everytime your family invole (sic) inside our family. Where ever I walk they always someone come an keep there eyes on me. Am I a husband or just using till they found someone for you.”

In the final paragraph the asks Ms Parker not to forget him, Kuinita and Tayla. He says:

“my heart go out to Tayla, but it is better for us to live like this better than you take her far away from me”.

38 Dr Westmore examined the prisoner on 9 April 2001 and prepared a report at the request of the prisoner’s solicitor. He obtained a history broadly consistent with that taken by Dr Delaforce. The cot death of Kuinita was prominent in the account the prisoner gave to Dr Westmore. When asked directly by Dr Westmore why he had killed Tayla the prisoner said “I love Tayla too much, stressed a lot, depressed a lot.” Dr Westmore pressed him as to why he might kill somebody who he loved to which he replied “I loved her too much, when Kelly took her away, took her too far”.

39 Dr Westmore concluded that the prisoner was suffering from a major depressive illness at the time he killed Tayla. He considered it probable that the depression arose from a grief reaction following the cot death of Kuinita. Dr Westmore went on to observe:

“Aggravating his mood state difficulties were relationship problems which resulted in frequent separations between him and Kelly but in particular between him and the children to whom he appears to have been very attached.”

40 A statement by Webber Roberts, District Manager, Probation and Parole Service, provided useful background information going back to 1996 when the prisoner saw him at the Pendle Hill Attendance Centre in connection with the requirements of his Community Service Order. Sometime later, around October or November 1998, the prisoner contacted Mr Roberts and said that he was having problems in his relationship with his de facto partner. The prisoner’s brother-in-law, a case manager at the Bathurst office of the Probation and Parole Service, had encouraged the prisoner to renew contact with Mr Roberts. Mr Roberts agreed to see the prisoner and Ms Parker on a voluntary basis. He saw them together two or three times and the prisoner on a further five to seven occasions over a period of about five months. In his statement Mr Roberts says:

“Risati appeared to me to be a devoted father and there were no indications that he bore any malice to any of the children and there were no indications of any abnormalities in his relationship with the children”.

41 The prisoner gave no indication to Mr Roberts that he wished to hurt anyone. He acknowledged that he had difficulties with anger control and it was this recognition that had led him to seek help. The prisoner also spoke with Mr Roberts about the sexual abuse suffered by him as a small child. Mr Roberts observed:

“I would describe Risati Laupama as a lonely isolated man. He was eager to do the right thing, however he lacked the communication skills to effect the desired outcome, his desire to be genuine in his family appeared to be real. The distorted looks upon his face when discussing his own abuse reflected a genuine pain for memorance (sic).

42 In the light of the circumstances of the offence together with passages in the report of Dr Delaforce I sought further assistance from the parties directed to the issue of the protection of the community; Veen (No. 2) v The Queen (1988) 164 CLR 465 at 475. In response to this I was furnished with an updateded report by Dr Westmore of 29 October 2001 and a report by Dr O’Dea, Psychiatrist, dated 2 November 2001.

43 Dr Westmore stated that he had re-examined the prisoner at the Parklea Prison Complex. He said:

“I asked Mr Laupama what his thoughts were now about what occurred and he said, ‘I feel bad, I feel sad, I feel guilty’. I asked him did he understand any more clearly why this tragedy occurred and he said, ‘really depressed at that time, stress out, confused. At that time I wasn’t thinking properly because too much inside the family. It was depression more because I had a daughter die, cot death, and I wasn’t coping very well.’
I asked him had he any thoughts about harming anyone else, I asked him specifically had he had thoughts about harming the other children and he said, ‘at the moment I have nothing to think about, it’s all over, the person I am now, I’m missing my kids a lot.’
I asked him did he think his relationship with his wife was over and he said, ‘yeah, I think so.’ I asked him did he know where the children were at this time and he said no”.

44 Dr Westmore took up with the prisoner his comments (made during the consultation with Dr Delaforce) about recurrent thoughts of harming people since he was a child. Dr Westmore reports:

“Mr Laupama said, ‘when I was five I was molested by a cousin, he was about thirty and from that I never told any member of the family and really depressed every time things happen. Sometimes I took off without telling people. I have that till I was about fourteen and all I was thinking was kill him because of what he done to me’”.

The prisoner went on to say that the cousin had died in a motor vehicle accident in 1983. He denied homicidal thoughts.

45 Dr Westmore offered the following opinion:

“This man does not in my opinion pose an immediate risk to others, his greatest risk is, I suspect, to himself. With regard to his future risks of re-offending, much will depend on his psychiatric prognosis. Should this man become significantly depressed again when in the community and not under strict supervision and observation then, depending on his circumstances, he may potentially represent a risk to others. Predicting future dangerousness with any certainty however is difficult and the matter now before the Court was a very situationally specific event. That is to say there is no indication this man represents a risk to the general community, he is unlikely to commit an impulsive act of aggression towards a member of the community but if mentally ill he may, in the context of intense interpersonal relationships, form abnormal views about those people.
As his illness does not appear to have gone into remission and because of the severity of his previous illness, his prognosis is looking uncertain. His long-term outcome is further complicated by the seriousness of the matters now before the Court, his own involvement in those matters and what I believe to be unresolved issues to do with his past. It is uncertain to me how psychologically minded this man is and how well he will be able to resolve those identified areas of past conflict in his life. These are not good long-term prognostic factors.”

46 Dr O’Dea reviewed the prisoner at the Parklea Centre on 16 October. It is apparent that Dr O’Dea had seen the prisoner on an earlier occasion.

47 In the course of his consultation with Dr O’Dea the prisoner stated that he harboured no resentment or grudge against his wife or two children. He said it was his plan “to start a new life” following his release from custody. He said he would understand if his wife and two children did not wish to be part of his life. Dr O’Dea said that the prisoner’s depression appears to have been related to many factors prior to the offence including the history of sexual abuse as a child and the death of his biological daughter in October 1998. He observed that it appeared that the prisoner’s history of anger, aggression and violence, particularly in the family setting, predated the death of his biological daughter. Dr O’Dea went on to state:

“In this case predictions of future dangerousness are likely to be difficult with significant margins of error possible. In addition, his risk of future dangerousness to specific persons is likely to be related to the nature and quality of interpersonal relationships, particularly close relationships such as family relationships, he may enter into in the future and how he might manage these relationships.
It appears that Mr Laupama’s depression is responding to treatment and that he will require on-going psychiatric treatment of his depression in order to optimise his response to treatment and minimise the risk of relapse of this condition. In the context of this depression, his risk of attempted self-harm and suicide is probably significantly higher than his risk of harm to others in the future.”

48 Dr Delaforce in his report of 21 March 2001 expressed the following opinion:

“In the meantime in prison he remains a very significant risk of eventual suicide. Instead of the anticipated peace in death with Tayla he faces the added problem of his guilt because of the killing. He needs further psychiatric treatment. Because of the overall severe and chronic extent of his mental disorders and their aggravation by killing Tayla his prognosis for his mental health is likely to be very poor.”

49 I was not supplied with an updated report by Dr Delaforce. However, in written submissions the Crown Prosecutor (with the consent of Mr Bruce who appears for the prisoner) informed me that as at 31 October 2001 Dr Delaforce had expressed the opinion that the prisoner was primarily a danger to himself.

50 The prognosis for the prisoner is not good. I take this to be principally because of a view, common to the psychiatrists who have provided reports, that the prisoner’s long-standing psychiatric difficulties make self-harm a likelihood. While the risk of the prisoner posing a danger to others in the future cannot be wholly discounted, I do not take the evidence to be such as to make it appropriate to give primacy to considerations of the protection of the community in the exercise of the sentencing discretion in a way that may be appropriate in some cases of manslaughter by reason of substantial impairment; Veen (No. 2) per Mason CJ, Brennan, Dawson & Toohey JJ at pp 476-477. The Crown did not submit otherwise.

51 While I am not of the view that the evidence discloses it is likely that the prisoner would represent a danger to others in the future, the question of whether, at the expiration of the non-parole period, he represents a danger is one which plainly enough will require careful consideration by the Parole Board. I bear in mind that in a case such as this release to parole at the expiration of the minimum term is not to be regarded as a foregone conclusion; Regina v Blacklidge (unreported) NSWCCA, 12 December 1995.

52 The maximum sentence for the offence of manslaughter is one of twenty-five years imprisonment.

53 The parties referred me to a number of cases involving the sentencing of offenders for manslaughter upon the basis of substantial impairment (formerly diminished responsibility); Grierson (unreported) NSWCCA, 28 October 1996; Barnett (unreported) NSWCCA, 16 February 1994; Chayna (unreported) NSWCCA, 8 June 1993; Dawney [1999] NSWSC 944; Li [2000] NSWSC 1088. I was also referred to Woodland [2001] NSWSC 416. In that case Wood CJ at CL collected a number of recent decisions involving the manslaughter of children by means of an unlawful and dangerous act carried out by a parent or carer. It seems to me that cases in the latter category, involving the lashing out at a helpless infant in a moment of anger or frustration, are somewhat removed from circumstances of the present case.

54 I note the observations of Gleeson CJ in Blacklidge (in a judgment with which Grove and Ireland JJ agreed):

“It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.
At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case (R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402).
When the basis of a finding of manslaughter is diminished responsibility, pursuant to s 23A of the Crimes Act, what is nevertheless ordinarily involved, and what is involved in the present case, is a conclusion that the taking of human life was the consequence of a deliberate and willed act, performed with intent to kill or cause grievous bodily harm, or with reckless indifference to human life. The abnormality of mind substantially impairs the offender’s mental responsibility for his or her act but it does not negate such responsibility. The reduction in the capacity for self-control which results from the abnormality of mind diminishes the responsibility, but it does not excuse the act (R v Low (1991) 57 A Crim R 8).

55 In the present case the taking of Tayla’s life was the consequence of the prisoner’s deliberate act carried out with the intention of killing her. He had been ruminating on thoughts of killing her for a number of hours. It is true that his capacity for self control and for understanding his acts was substantially impaired by his major depressive illness. It is for that reason that he stands to be sentenced for the manslaughter, and not the murder, of Tayla. Nonetheless this remains a very serious case of manslaughter. Additionally, as I have noted above, I am to take into account the kidnapping of Ms Parker in the sentence which I impose.

56 I take into account the prisoner’s plea of guilty. I propose to discount the sentence that I would otherwise impose by just under fifteen percent to reflect the utilitarian value of the plea. In coming to this view I note that the plea was offered in a timely way. I also note my view that any trial would have been relatively short and of no particular complexity.

57 I should also note that I take into account the prisoner’s custodial situation. On 19 July 2001, while he was being held at the Grafton Correctional Centre, he was assaulted. A report of Dr Mallows of the Emergency Department, Westmead Hospital, records that the prisoner had been beaten about the head and body. His nose was fractured with an overlying laceration. He was tender about the head, neck and torso. At the time Dr Mallows examined him the neck still had a significant muscle spasm. The laceration to the nose required suturing. The prisoner requested that he be placed on strict protection after receiving treatment for the assault. I act upon the basis that he will spend most, if not all, of his sentence in conditions of protection.

58 It was submitted that there are special circumstances, within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999, which justify a departure from the statutory proportion as between the non-parole period and the sentence. In the light of the prisoner’s psychiatric difficulties and the desirability of him receiving the benefit of supervision for a lengthy period I accept that submission.

59 I should note that the Crown Prosecutor invited me to make a recommendation that the prisoner be deported upon his release from custody. This matter was raised at the conclusion of the sentence hearing. The issue was not ventilated at any length. In the circumstances of this case I am not persuaded that it is appropriate for me to make such a recommendation. I consider it is a matter better dealt with by the Executive at the appropriate time.

60 Risati Laupama I sentence you to a term of twelve years imprisonment to date from 30 December 1999. I specify a non-parole period of eight years. The first date on which you will be eligible for consideration for release to parole is 29 December 2007.

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Last Modified: 12/10/2001