R v Wood

On 5 October 2018 Russell Brian Wood (“the offender”) pleaded guilty to a charge that on 30 September 2017, at Whalan in the State of NSW, he murdered Sarah Brown (“the deceased”). That is an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) and carries a maximum penalty of life imprisonment. It should be noted at the outset that the Crown did not submit that a life sentence was appropriate in the present case.

In addition, the offender has asked this Court to take into account a further matter on sentence, namely a contravention of a prohibition or restriction in an Apprehended Violence Order which also occurred on 30 September 2017.

In RL v R [1] , by reference to the judgment of Spigelman CJ in Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2] , and that of Bathurst CJ in Abbas, Bodiotis Taleb and Amoun v R [3] , Wilson J and I set out a number of propositions regarding the use of a Form 1 on sentence. We observed, in particular, that the entire point of the Form 1 process is to impose a longer sentence than would have been imposed if the primary offence had stood alone [4] . We also observed that whilst each case will depend its own facts, the proposition that there should be little or no increase in the sentence imposed for the principal offence in such circumstances has been consistently rejected [5] . I have taken the Form 1 offence into account in accordance with those principles.

The Crown tendered a folder of written material [6] which contained the following;

In addition, the Crown tendered:

Counsel for the offender tendered two documents on sentence, namely:

At the time of the tender of the offender’s affidavit, the Crown indicated that he wished to cross-examine the offender on its contents. Counsel for the offender indicated that although the affidavit was relied upon, it was not proposed to call the offender to give evidence. To the extent that the affidavit set out matters of background, and expressions of remorse, the Crown did not take issue with it. Beyond that, as I observed at the time, the document amounts to little more than a series of assertions made by the offender which are entirely untested by cross-examination. Beyond the matters conceded by the Crown, it is deserving of little or no weight.

As I have indicated, the Crown tendered victim impact statements prepared by two of the deceased’s five children. Those statements were read to the Court on their behalf. The deceased’s children have found themselves confronted, without warning, by an unimaginable tragedy. It is apparent that the deceased had a close bond with all of her children. Her death has deprived those children of a mother, a carer, a mentor and a friend. The consequences have been particularly profound in the case of one of the children, who continues to struggle with mental health issues precipitated by her mother’s death. I am hopeful that the opportunity that two of the deceased’s children have been given to provide statements will assist them to manage their obvious and understandable grief. I extend my deepest sympathies to each of them, and to their siblings.

Section 28(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) is in the following terms:

The Crown submitted that I should treat the victim impact statements in the present case in the manner for which provision is made in that section. In R v Medich (No.43) [11] I made reference to the authorities governing s 28(4) and concluded [12] that those authorities supported the general proposition that although the nature and degree of harm may vary, any case of murder is harmful to the community. The present case falls squarely into that category. I am satisfied that it is appropriate to have regard to the victim impact statements in the manner for which s 28(4) provides. Counsel for the offender did not object to that course.

As I have indicated one of the documents tendered by the Crown was entitled “Proposed Facts”. However, counsel for the offender made it clear that I could proceed on the basis that the facts set out in that document were agreed.

At the time of the offending, the offender was 26 years of age and the deceased was 34 years of age. The deceased was the mother of five children ranging in ages from 18 to 6. The three youngest children lived with her.

The offender and the deceased had been in what has been described as an “on again/off again relationship” since approximately October 2015. It is apparent that such relationship was characterised by domestic violence. On a number of occasions, family members and friends had observed the deceased to have injuries, including black eyes and bruising to her arms. The deceased had told family and friends that the offender was responsible for these injuries, and that he had put his hands around her throat on a number of occasions. On one particular occasion in July 2016, an ambulance and police were called to the deceased's home and the deceased transported to hospital with injuries to her head and face. The deceased's 14 year old daughter had been present on that occasion and had witnessed part of the assault. The deceased presented at hospital with swelling and bruising on her forehead, right cheek and right parietal area, and a laceration to her lower lip.

Approximately one week prior to the deceased’s death, her relationship with the offender had again ended, following which she travelled with her three youngest children to the Central Coast where she stayed with friends for the week. Despite the cessation of their relationship, the deceased and the offender kept in contact during that time. On the afternoon of 29 September 2017, the offender finished work and attended a hotel at Parramatta where he consumed alcohol. Whilst he was there he spoke with the deceased who was returning home from the Central Coast. The deceased had become lost, a matter about which she and the offender commenced arguing. She nevertheless made arrangements to collect the offender from Mount Druitt Railway Station. Having done so, the deceased and the offender went to a bottle shop and purchased alcohol, before going to the deceased’s home where they commenced drinking.

At 8:42pm, the deceased called a taxi which arrived at her home at 8:50pm. She and the offender then travelled to “Uncle Bucks Tavern” in Mount Druitt, arriving at about 8:55pm. CCTV footage taken from inside the taxi on the way to the tavern showed the offender and the deceased apparently in good spirits. Observations made by staff members at the tavern were to a generally similar effect. Both were in the poker machine area at times, and during the period in which he was at the tavern the offender withdrew a total of $500.00 from a nearby ATM. The offender was obviously drinking.

The offender left the tavern by himself at about 11:06pm, arriving at the deceased’s home at some time before midnight. The deceased remained at the tavern until about 11.51pm when she departed in a taxi. There was telephone contact between the offender and the deceased whilst the deceased was at the tavern on her own, as well as during her journey home, as follows:

At 11:56pm the offender then sent his father the following text message:

The deceased arrived home at approximately midnight. At 12:33am, the offender called triple 0. The call lasted 93 seconds but was not connected to a despatcher.

At 1:36am the offender called his father and a 54 second connection occurred. The offender called his father again at 1:39am and a 17 second connection occurred. The offender’s father said that during these calls, the offender sounded upset. At one point, the following exchange took place between the offender and his father:

The offender’s father arrived at the deceased’s home at about 1:55am. He walked up to the front door. The offender opened the door. His father looked into the house and saw the deceased lying on the kitchen floor. He walked inside and saw that deceased’s face and lips were pale and blue. He also saw a wound on the deceased’s ribs which he described as being "about an inch and a half long", around which was dried blood. The offender then retrieved a nearby tea towel and placed it on that wound before lying down next to the deceased crying and saying:

When asked by his father whether he had called anyone, the offender replied:

The offender's father then walked out to the front of the house and called triple 0. He went back into the house and saw a large silver knife in the corner of the kitchen. He then left the house and remained out the front until police arrived, during which time he could hear the offender crying loudly.

Police arrived at the deceased’s premises at about 2:08am. As they approached the front door they could hear a person inside yelling. Upon entering the house, they saw the offender lying on the floor curled up next to the deceased, resting his head on her shoulder and holding the tea towel against her stomach. They noticed that the deceased was very pale and had a wound on the left side of her stomach which was visible when the offender removed the tea towel. Police also saw a large kitchen knife about a metre away from the deceased’s feet. A trail of smeared blood extended from near the knife to the lower half of the deceased’s body.

At this point, the offender cried and said:

Police then moved the offender away from the deceased, at which time he said:

Police then removed the offender from the house and on to the front lawn of the premises. Ambulance officers arrived at about 2:11am and commenced CPR. They continued to try to revive the deceased over a period of more than 25 minutes. The deceased was pronounced dead at 2:37am on 30 September 2017.

Once out on the front lawn, the police had a conversation with the offender. It would be fair to say that the transcript of that conversation reflects what could only be described as a high level of disordered thought on the part of the offender, consistent with his having consumed a large quantity of alcohol.

In the course of that conversation the following exchange took place [13] :

A further exchange took place [14] regarding the offender’s drinking earlier that evening:

As police began to drive away from the deceased’s premises, the offender began to scream and yell, repeatedly banging his head and fists against the inside of the caged police truck. When the truck arrived at the police station, the offender was taken into the custody area where he continued to yell, scream, throw his hands around and bang his head on the walls. After being introduced to the custody manager, the offender was placed in a cell and could be heard yelling towards police. Approximately 45 minutes later, the offender yelled out:

The offender then gave police some money and a quantity of cannabis. He continued to violently thrash around in the dock at the police station, repeatedly hitting his head on the perspex wall. The offender was extremely emotional, his behaviour ranging from displaying violence and aggression, to crying uncontrollably, to pacing within the dock and jogging on the spot. This behaviour continued for some time. At about 3:45am, the offender said:

At about 5:17am, the offender stood up and placed both hands on his head and said:

At 5:38am, the offender said:

Commencing at around 5:45am, the offender participated in an electronically recorded interview with police. Whilst I do not propose to recount the entirety of what he said, there are certain aspects of that interview which, in view of the nature of the offending, assume some importance.

The offender was questioned about his consumption of alcohol [15] :

When asked by police what he could tell them about the events earlier that morning, the offender said [16] :

The offender was then asked how intoxicated he thought he was at the time, to which he responded [17] :

According to the offender’s account of events [18] , he had walked into the bedroom of the premises when the deceased grabbed a knife from a kitchen drawer and threatened to stab him [19] . He agreed that he was not permitted to be at the deceased’s premises and was then asked [20] :

The offender went on to explain [21] that he put the deceased “in a choker” which he explained in the following terms [22] :

The offender explained to the police [23] that this had cut off the deceased’s circulation, causing her to lose consciousness.

When questioned further about what he could remember about the incident, the offender said the following [24] :

The offender was then asked about his reaction to alcohol [25] :

The offender was then asked about the history of his relationship with the deceased [26] :

Finally, the offender was asked why he had applied a choke hold to the deceased [27] :

The cause of the deceased’s death was a stab wound to the left anterior abdominal wall. The wound track proceeded medially, backwards and downwards. It perforated the skin and subcutaneous tissue of the left anterior abdominal wall, incised loops of the small bowel and transected the abdominal aorta and inferior vena cava immediately before its bifurcation. There were resultant retroperitoneal haemorrhages (accumulation of blood found in the retroperitoneal space), pneumoperitoneum (abnormal presence of air or other gas in the peritoneal cavity), haemoperitoneum (1000 mL) (presence of blood in the peritoneal cavity) and features of hypovolemic shock secondary to blood loss (pale organs and subendocardial haemorrhages in the head).

There was a further stab wound to the deceased’s left anterior chest wall. The wound track proceeded medially, backwards and downwards. It perforated the skin and subcutaneous tissue of the left anterior chest wall and fractured the 3rd left rib.

There was also a focal haemorrhage over the pericardium and injuries to right hand, including:

There were signs of neck compression in the form of abrasions and bruising to both sides of the neck and to the rami of the mandible. In addition, there were facial, oral and conjunctival petechial haemorrhages. There was focal bruising to the platysma muscle and submandibular gland on the right. There were no cervical spine injuries. There were no fractures of the hyoid bone, cricoid cartilage or thyroid cartilage.

On right side of neck, there was a wound that consisted of a linear bruise that lay over the sternocleidomastoid muscle, and a horizontal abrasion that extended to the anterior midline and then dipped inferiorly. The total area involved was 80 x 70mm. The linear bruise was approximately 60 x 10mm. The horizontal abrasion in its entirety was 50 x 20mm. The inferior component was 10mm wide and extended 30mm inferiorly. There were petechial bruises over the thyroid cartilage in the midline.

On the left side of the neck, there was a broad band of abrasion and bruising that had a semi-circular configuration. The total surface area involved was 50 x 60mm. The superior bruise was 40 x 30mm and the inferior abrasion was 50 x 10mm.

There was bruising 5-10mm over the proximal end of the left clavicle and over the sternal notch, along with numerous other bruises and lacerations to the face, both arms, thighs, shins and feet. These included:

The Crown submitted that the offending was aggravated by a number of factors. It was not in dispute that one such factor stemmed from the offender’s use of a weapon [28] . Further, both the Crown and counsel for the offender acknowledged that the offending occurred in the deceased’s home, in circumstances where there was an order in place prohibiting the offender from going within 250m of that location [29] . Finally, the parties agreed that the fact that the offender was on conditional liberty at the time further aggravated the offending [30] .

Three further aggravating factors, two of which were in issue and one of which was not, warrant particular consideration.

The offender’s record of previous convictions is, in the circumstances, an aggravating factor [31] of considerable significance. It was not disputed that such record aggravated the offending.

On 1 February 2010 the offender appeared before the Mt Druitt Local Court in respect of three offences, namely:

The victim of the offending in (i) and (iii) was the offender’s mother. On 25 January 2010, the offender had consumed a large amount of alcohol. At about 1.30am the following morning he and his mother were in the lounge room of the premises in which they lived, when an argument developed. The offender became abusive towards his mother, picked up a plastic bottle of water and threw it at her before walking over and kicking her repeatedly in the left leg. When his mother left the premises to seek refuge elsewhere, the offender followed her and threatened to kill her. When police arrived they spoke with the offender. He was well affected by alcohol, was slurring his speech and was unsteady on his feet. Whilst police were speaking with the offender’s mother, the offender climbed on the roof of a carport at the premises and again threatened to kill her. In the course of being arrested, the offender engaged in a struggle with police.

The offender was convicted of each of these offences and was released, in respect of each, on a bond under s 12 of the Sentencing Act with conditions that he accept supervision and direction in respect of counselling, drug and alcohol rehabilitation, and domestic violence and anger management. An apprehended violence order was made for the protection of his mother, for a period of two years.

On 1 December 2011 the offender appeared before the Mt Druitt Local Court in respect of charges of:

The victim of the offending in [58](ii) above was, once again, the offender’s mother. On 22 September 2011 (and thus within the period of the apprehended violence order referred to in [57] above), the offender had gone into the lounge room of the premises he shared with his mother. He appeared intoxicated and was stumbling. He remonstrated with his mother over a purchase of underwear that she had made for him, complaining that what had been purchased was not the right colour. His mother left the lounge room and went to her bedroom. The offender followed her, picked up a piece of wood approximately one metre in length, and began to damage the ceiling by hitting it. The offender then went over to where his mother was sitting and slapped her a number of times about the head. Police arrived a short time later.

The offender was convicted and the following sentences were imposed:

The assessment report which was undertaken prior to those orders being made recorded (inter alia) the following:

On 16 February 2017 an interim apprehended violence order was made for the protection of the deceased, the conditions of which prohibited the offender from:

In the early hours of 26 March 2017 police were called to the deceased’s premises. Upon arrival, the offender and the deceased were seen to be shouting at one another in the middle of the street. Although the deceased did not assist police with their inquiries, the offender was arrested and charged with breaching the order referred to in [62] above. The police declined to read and explain the offender’s rights pursuant to Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) on account of what was described as his “severe level of intoxication”.

On 17 May 2017, the offender appeared at the Mt Druitt Local Court and pleaded guilty to breaching the apprehended violence order in [62] above. He was fined $800.00 and placed on a bond pursuant to s 9 of the Sentencing Act for a period of 18 months. That bond was accompanied by a condition that he obey all reasonable directions of the NSW Probation Service in respect of counselling, educational development and drug and alcohol rehabilitation. The previous apprehended violence order was made final.

On 17 May 2017, the offender also appeared at the Mt Druitt Local Court in respect of a charge of using a telecommunications service to harass a person, contrary to s 474.17(1) of the Criminal Code 1995 (Cth). That offence arose out of a series of text messages in which the offender had threatened to jump on his former partner’s head, break her jaw if she ever came near him, an punch her head in. On that occasion, the offender was released on a Recognisance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), which included a condition that he accept supervision for as long as was considered necessary by the Community Corrections Service, and obey all reasonable directions of that service in respect of counselling, educational development and drug and alcohol rehabilitation.

The offender’s criminal history is extensive. It reflects generally violent offending, and breaches of apprehended violence orders. Given the nature of the offending to which the offender has pleaded guilty, that history is of obvious significance. However, there is one aspect of the offender’s record which warrants particular emphasis.

At the time of the present offending, the offender was subject to an order of a Court which prevented him, not only from assaulting the deceased, but from going within 250m of where she lived. The breach of that order is the subject of the Form 1 offence. It occurred on the night of the deceased’s murder. Compliance with any order of a Court is not optional. The offender told police that he did “not give a fuck about the AVO” and that “no AVO was going to keep him away” from the deceased. Any further observation about his cavalier disregard for, and his complete defiance of, that apprehended violence order, would be superfluous. Apprehended violence orders are put in place for good reason, namely to protect those who are considered to be in need of protection. Any breach of them is a serious matter. The circumstances of the present case should serve as a warning of the disastrous consequences which can eventuate from the actions of those who act in flagrant disregard of such orders.

The Crown submitted that the offending was further aggravated by the fact that it involved gratuitous cruelty [38] . In this regard, the Crown pointed, in particular to the extensive injuries which were inflicted upon the deceased over and above the wounds left by the stabbing which caused her death. Counsel for the offender submitted that I could not be satisfied beyond reasonable doubt that those injuries, or at least the entirety of them, had been caused by the offender. He submitted, in particular, that there was no evidence of the age of any of the bruising which was found on post mortem examination.

In the context in which it is used in the Sentencing Act, the term “gratuitous cruelty” connotes intentional violence which is committed simply to make a victim suffer [39] . The nature and extent of the injuries found during the post mortem examination conducted in the present case are, in my view, entirely inconsistent with the deceased having sustained them (as was submitted on the offender’s behalf) as a result of nothing more than the exigencies of life. Moreover, on the offender’s own admission to the police, he applied pressure to the deceased’s neck in what was obviously a choking-type action. In my view, these matters establish gratuitous cruelty which further aggravates the offending.

The Crown submitted that on the entirety of the evidence, it was clear that the offender had been intoxicated at the time of the offending, and that in the circumstances I should conclude that such intoxication amounted to a further aggravating factor. The Crown pointed to a number of matters in support of that submission, including:

Counsel for the offender accepted that the evidence supported a conclusion that the offender was intoxicated, to a significant degree, at the time of the offending. He also accepted that if it is established that there is recklessness connected to the ingestion of the alcohol which causes the intoxication, then this can aggravate the offending. Further, counsel did not take issue with the fact that the offender had previously displayed what might be described as alcoholic tendencies, nor did he dispute that the offender’s intoxicated state had contributed to his conduct on this occasion.

However, whilst counsel certainly did not suggest that the offender’s intoxication was a mitigating factor, he submitted that on the whole of the evidence I could not be satisfied that the conduct which resulted in the offender becoming intoxicated prior to his offending was reckless. He submitted that in the circumstances of this case, intoxication was a neutral factor.

In R v Coleman [40] Hunt J (as his Honour then was, and with whom Finlay and Allen JJ agreed) observed [41] that the degree of deliberation shown by an offender is usually a matter to be taken into account in determining the seriousness of offending, and that intoxication is therefore relevant in determining the degree of deliberation in an offender’s breach of the law. His Honour went on to say:

These observations were adopted by Rothman J (with whom McClellan CJ at CL and Hulme J agreed) in Stanford v R [42] . In that case, the offender had become what his Honour described as “uncharacteristically drunk” at the time of the offending. His Honour found [43] that the aberrant nature of that offender’s conduct supported the conclusion that such conduct was induced by the alcohol and that, however reprehensible, the conduct was an irrational response to the conduct of the victim. In those circumstances, his Honour concluded that intoxication was properly regarded as a mitigating factor. As I have indicated, no submission was made on behalf of the offender in this case that his intoxication mitigated his offending.

In Mendes v R [44] Davies J (with whom Whealy JA and Schmidt J agreed) concluded that in the circumstances of that case, there was an evidentiary background demonstrating a link between drug use and aggression which the applicant had understood. Having cited the judgment of Rothman J in Stanford his Honour said [45] :

The evidence in the present case does not support a conclusion that the offender consumed alcohol in the hours leading up to the offending for the specific purpose of becoming aggressive. However, it is clear that the offender was intoxicated and I am satisfied that this should be treated as an aggravating factor. I have reached this conclusion for a number of reasons.

Firstly, the offender’s criminal history includes a litany of violent offending. Two instances of that offending were obviously, and specifically, alcohol related.

Secondly, a number of the offender’s statements to police are particularly telling. He told police he had a “bad drinking problem”, that he was “pretty drunk” and that he was a “bad drunk”. He told them that when he was drunk, he did “bad shit”, he “punched shit”, and that he head butted concrete. He told them that there were occasions on which he had woken up with broken hands after consuming excessive alcohol. He described himself as a “weirdo” and said that he became “crazy” when he drank. Even more significantly, when asked about his relationship with the deceased, the offender told police that “sober, we’re good” but that alcohol was “an issue”. Clearly, the offender appreciated the connection between drinking to the point of intoxication, and violent behaviour.

Thirdly, Ms Duffy recorded the following [46] :

Later in her report [47] Ms Duffy recorded the history provided by the offender in respect of drugs and alcohol. She stated:

In my view, bearing in mind the whole of this evidence, it is inconceivable that the offender was unaware of the link between his alcohol consumption and his violent behaviour. I am satisfied that his decision to become as intoxicated as he was on the night of the offending was clearly reckless, and that this further aggravates the offending.

The Crown submitted that the deceased was a defenceless and vulnerable woman who had been attacked in what should have been the sanctuary of her home. It was submitted that because the offending had been committed in the context of domestic violence, general deterrence and denunciation were important considerations on sentence.

The Crown submitted that the evidence supported a conclusion that the offender had intended to kill the deceased. In this regard, the Crown pointed, in particular, to the nature and extent of the deceased’s injuries, as well as the specific fact that the force inflicted by the offender in one instance was sufficient to cause a fracture of one of the deceased’s ribs. The Crown accepted that there was no evidence which established that the offending was pre-meditated.

Ultimately, it was the Crown’s submission that the offending fell into the mid to upper range of seriousness.

Counsel for the offender submitted that an assessment of the objective seriousness of the offending fell to be determined having regard to the nature of the attack itself. Counsel submitted that notwithstanding the evidence, I would not be satisfied beyond reasonable doubt that the offender intended to kill the deceased. He submitted that it was likely that the offender had been driven by anger, leading to a sudden and complete loss of self-control.

Ultimately, counsel for the offender accepted that the offending was at least at the mid-range.

The evidence in the present case overwhelmingly establishes that the deceased, a woman who was 1.59m tall and who weighed just 49kgs [48] , met an untimely, brutal and violent death at the hands of the offender. She was stabbed to death, one of the blows being of sufficient force to fracture one of her ribs. The force of that blow, and the extent of the injuries generally, satisfy me that the offender acted with an intention to kill the deceased. There is some vague suggestion in the evidence that the offender may have been angry due to losing money gambling on poker machines earlier in the evening. However, the evidence does not permit me to reach any finding as to what motivated him to act as he did. Similarly, the evidence does not enable me to reach a finding as to the sequence in which the various injuries were inflicted on the deceased.

I am similarly unable to determine whether, as the offender asserts, the deceased originally came at him with the knife in the kitchen of the premises. Even if that were the case, it would not detract in any way from the seriousness of an attack which reflects a complete lack of respect for the life of another human being. The offending was aggravated by a multiplicity of factors to which I have referred.

Although there is no specific category of “domestic murder” or “relationship murder” [49] , there is no escaping the fact that the deceased was murdered in an atmosphere of serious domestic violence. It follows that the gravity of the offending must be assessed in the context of the relationship which existed between the offender and the deceased [50] . Domestic violence of any kind is, quite simply, unacceptable. It is a scourge on the community, and antithetical to what any right thinking member of the community regards as appropriate. In the present case, the level of violence exhibited by the offender escalated to the point where it was out of control. The consequences were disastrous. The fact that a relationship may be unstable, or the fact that a relationship entirely breaks down, can never justify vengeful violence being perpetrated by one party to the relationship upon the other [51] .

The approach to be taken in sentencing for offending of this general nature was reiterated by the High Court [52] in Munda v State of Western Australia [53] in the following terms:

In Cherry v R [54] Johnson J (with whom Macfarlan JA and Harrison J agreed) said, in reference to the decision in Munda [55] :

Such observations have a particular resonance in the circumstances of the present case. This was a serious case of murder. In my view, it falls above the mid-range of objective seriousness. Any sentence must reflect the need to protect the community. It is, regrettably, too late to protect the deceased. However, it is not too late to impose a sentence which will act as a deterrent to others who might be minded to act as the offender did. It is in that way that the Court’s obligation, of which Johnson J spoke, can be met. Moreover, and in light of this offender’s history of offending, any sentence must carry with it an equally strong measure of personal deterrence.

There is no dispute that the offender pleaded guilty at the first available opportunity. As a consequence, he is entitled to a 25% discount to reflect the utilitarian value of his plea [56] . I also accept that the offending was not planned [57] .

I have already noted [58] the documentary material tendered in the offender’s case. For the reasons I have explained, the majority of the offender’s affidavit is deserving of little or no weight in circumstances where its contents were not the subject of cross-examination. Similarly, one must be cautious of accepting statements made by an offender to third parties such as Ms Duffy whose reports are tendered in evidence [59] . That said, the Crown did not take issue with the accuracy of the details of the offender’s general background which are set out in that material.

The offender is now 27 years of age. He has two siblings. His parents, both of whom were at one stage addicted to heroin, separated when he was young. In addition, his father suffered from alcoholism for a period. As a consequence of a combination of these matters, the offender’s domestic upbringing was a violent one.

At the age of 14, the offender was expelled from school in Year 9 due to behavioural and truanting issues. Because of those issues, and her inability to cope with them, the offender’s mother sent him to live with his father. This resulted in the offender’s behaviour becoming worse, and he was eventually sent back to live with his mother.

Having worked as a cashier in a retail store for about 6 months, the offender attended TAFE where he commenced a course in spray painting. He secured an apprenticeship, which he completed. It is apparent that the offender’s work history has been punctuated by terminations of employment due to his drinking. However, on those occasions he appears to have obtained alternative positions reasonably quickly, to the point where he appears to have had no real lengthy periods of unemployment. Unsurprisingly, the offender regards himself as an alcoholic. I have previously recounted the history that he provided to Ms Duffy.

I have taken all of the factors bearing upon the offender’s background into account in determining an appropriate sentence.

Despite the fact that the contents of the offender’s affidavit were untested, the Crown was prepared to accept that the expressions of remorse which were contained within it were genuine. Ms Duffy also noted that the offender had expressed “considerable” remorse to her. Those statements are generally consistent with some of the statements made to police by the offender shortly after he was taken into custody. I am satisfied that he is genuinely remorseful [60] .

Ms Duffy concluded that the offender’s presentation, history and clinical assessment revealed “an individual exhibiting symptoms consistent with generalised anxiety disorder and major depression in respect to his circumstances”. She also concluded that he exhibited signs of post-traumatic stress although this was as a consequence of his own actions in causing the death of the deceased. She considered it essential that the offender be given the opportunity for rehabilitation and counselling. She concluded that he would need ongoing management and care, including psychiatric review.

Assessing the offender’s prospects of rehabilitation [61] is problematic, for the simple reason that his successful rehabilitation depends largely upon him being able to firstly, abstain from alcohol and secondly, to control his anger. In these circumstances, and in light of his history, the Crown submitted that I should conclude that the offender’s prospects of rehabilitation were, at best, guarded. Counsel for the offender did not submit to the contrary. In my view, that is the most favourable finding that can be made on the entirety of the evidence.

Counsel for the offender invited me to make a finding of special circumstances [62] . I decline to do so. The offender’s period of parole will be sufficiently lengthy for him to address any rehabilitative measures.

The offender has been in custody since his arrest on 30 September 2017 and there is no issue that his sentence should be backdated to commence on that day.

I make the following orders: