R v Krey (No 4)

1. [1]

   HIS HONOUR: On 28 September 2020, Billy Krey was indicted for trial by judge alone before me on a count that on 15 July 2017 at Whalan in the State of New South Wales, he murdered Ioakima Sini. Following a trial lasting 13 days, on 18 December 2020, he was found not guilty of murder, but guilty of manslaughter: R v Krey (No 3) [2020] NSWSC 1811. A sentence hearing took place on 22 February 2021. Further written submissions were received after that date. I now deliver sentence for that offence. In this judgment, I will refer to Mr Krey as the offender and Mr Sini as the deceased.

2. [2]

   The maximum penalty for the offence of manslaughter is imprisonment for a period of 25 years: s 24 of the Crimes Act 1900 (NSW) (“the Act”). Manslaughter is not an offence that has a standard non-parole period pursuant to Div A of Pt 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSP Act”).

The circumstances of the offence

1. [3]

   An overview of the offence, as set out in the judgment on verdict, is as follows.

The interview by police

1. [4]

   The offender was taken to a local police station and in the early hours of the following morning he was interviewed by police in the presence of a support person. The interview was recorded and an edited version was tendered into evidence. In the judgment on verdict, the content of the tendered interview in detail was summarised. For the purposes of this judgment, the relevant points are summarised as follows.

2. [5]

   The offender said he went to bed about 11:00pm the night before and slept through until the following afternoon. He recalled yelling at his mother and AJ but did not remember what he had said. He thought the argument with his mother was about money but could not recall any further details. He was feeling angry:

3. [6]

   He said (deleting repeated words):

4. [7]

   He said:

5. [8]

   When asked what the deceased had said to him, he replied:

6. [9]

   The offender was also asked:

7. [10]

   Later in the interview, the offender said:

8. [11]

   The offender was asked:

9. [12]

   The offender said he did not remember taking out his knife or stabbing the deceased and that he felt like crying, “Cause I didn’t want to hurt him”. When asked why he hurt the deceased, he responded: “I don’t know”.

10. [13]

    The offender said he knew the deceased and that “I used to call him my uncle”, which was what everybody called him. He denied having had “any trouble” with the deceased previously. He said: “Oh, he’s an all right person when he wants to be but when he gets on alcohol and that”.

11. [14]

    The offender said that he told his grandfather “I think I stabbed somebody”. He was asked: “Who did you think you stabbed?”. He replied:

12. [15]

    The offender said that the knife was near a “seat” at the “front of my house”. He had put it there “probably yesterday”. He did not know why he had done so. He demonstrated the length of the blade, which police estimated to be about 15cm. He described it as a “decorative knife” that he had bought from a tobacconist about a year before. He had previously stored it in his room, in a drawer. When he picked up the knife, he put it in his pants. His explanation for taking it with him was that he normally took a knife with him when he went for a walk, because “BFL boys and that, they’re always walkin’ around wanting to rob people, take people’s stuff and that”. He said that if that happened, he would:

13. [16]

    The offender said that he dropped the knife on his way to his grandfather’s place because it had blood on it and he might get “pulled up … didn’t want to get caught”.

14. [17]

    The offender said that the only drug he used was marijuana, “once in a while”. He said he had smoked “two joints” the night before. He described its effect on him as follows: “It calms me down … Makes me normal, like I can think”. He said he drank alcohol, but the last time he did so was about three weeks previously. He was dependent on his mother financially. He left school in Year 9 or Year 10, in Armidale. He said that he could not write and his reading was “Not very good”.

15. [18]

    The offender was asked about documentation police had retrieved from his grandfather’s residence that referred to him having an attention deficit hyperactivity disorder (“ADHD”). He was asked if he took medication for that condition and replied: “I stopped taking my pills”. He said that he was on “12 or 13 … pills a day [for all] sorts of different things”. He said he stopped taking them four years earlier, although I note that his grandfather, Mr Bobak, said that the offender stopped taking medication when he left his place to live with Ms Krey.

16. [19]

    The offender said he had experienced blackouts before, but not for as long as this one.

17. [20]

    I accept that the offender was truthful in what he told police.

The central issue at trial

1. [21]

   In the judgment on verdict, the Court accepted the evidence in Ms Krey’s statement to police that during the argument in the house, the offender had threatened to stab her: at [102]. Following a review of the evidence of witnesses to the stabbing, the Court accepted the evidence of three witnesses and the offender’s account to police that the deceased had said something to the offender immediately before he stabbed him: at [110].

2. [22]

   In the judgment on verdict, the Court was satisfied beyond reasonable doubt that the actions of the offender, namely, stabbing the deceased, caused the death of the deceased and that, having regard to the length of the blade of the knife and the depth, number and location of the knife wounds, the offender stabbed the deceased with the intention of killing him.

3. [23]

   The central issue in dispute at the trial concerned the offender’s state of mind at the time of the stabbing. The defence contended that, if the court was satisfied beyond reasonable doubt that the elements of the offence of murder were made out, then he qualified for the partial defence known at the time of the trial as “substantial impairment by abnormality of mind”, which will be referred to in this judgment as “substantial impairment”. It was made available by s 23A of the Act and had three elements for the defence to establish on the evidence, on the balance of probabilities. They were:

4. [24]

   In support of its contention, the defence tendered 26 reports and other documents that were generated over the offender’s childhood and adolescence (“the documentary material”) and called evidence from a forensic psychiatrist, Dr Olav Nielssen, and a forensic neuropsychologist, Dr Molly Schafer. The Crown arranged for the offender to be assessed by a forensic psychiatrist, Dr Stephen Allnutt, and a forensic neuropsychologist, Dr Susan Pulman.

5. [25]

   In the judgment on verdict, in relation to the first element of substantial impairment, the Court found, on the balance of probabilities, that at the time of the offence, the offender had an intermittent explosive disorder as diagnosed by Dr Allnutt; a Foetal Alcohol Spectrum Disorder (FASD) as diagnosed by Dr Schafer; and a complex post-traumatic stress disorder (“complex PTSD”) as diagnosed by Dr Pulman. In relation to the second element, the Court found those three conditions substantially impaired the offender’s capacity to control himself at the time of the stabbing. In relation to the third element, the Court took into account the degree to which the three conditions contributed to the offender’s urge to kill the deceased, and his ability to resist that urge.

6. [26]

   The offender’s mental condition is relevant on sentence, in a number of ways, some being mitigatory and others exacerbatory, as was explained by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. An offender’s mental condition may reduce their moral culpability, as it has done here, by the offence being reduced in seriousness by the verdict of manslaughter, rather than murder. It may make the offender an inappropriate vehicle for general deterrence and lessen or eliminate the need for a sentence to reflect specific deterrence. There may also be less need for the sentence to reflect retribution and denunciation: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [54]. Conversely, it may mean that the offender presents more of a danger to the community so that specific deterrence may result in an increased sentence.

7. [27]

   That being so, it is appropriate to review the material as to the offender’s background, his mental health history and the opinions of forensic experts that were accepted in the judgment on verdict.

8. [28]

   The offender’s background, according to the documentary material, is as follows.

9. [29]

   The offender was born in Sydney, the second of four children, and was initially raised by his mother. His parents had significant domestic violence and drug and alcohol issues and separated when he was aged about four. At that time, in 2002, his father received a lengthy prison sentence for a crime of extreme personal violence, only being released in 2017. When the offender was aged five, the family relocated to Armidale. According to some of the documentation, this was pursuant to the family being put on the witness protection program.

10. [30]

    By the age of eight, the offender was in foster care, but after about 18 months, he was moved back into his mother’s care in Sydney. That arrangement did not last, and by age 10 he was in a foster placement back in Armidale. On 2 April 2009, at which time the offender was still aged 10, by an order of the Children’s Court sitting at Tamworth, he and his (then) two siblings were made wards of the state. In November 2010, when he was aged 12, he was placed with his maternal grandmother. Two months later, he was removed from her care, when she was taken off a train while suffering methadone withdrawals. On 18 August 2011, orders were made restoring the care of the offender, then aged 13, to his mother in a phased process of supervision over the ensuing two years. However, it appears that this did not eventuate. On 5 September 2013, when the offender was aged 15, an order was again made, making him a ward of the state. As noted by clinical neuropsychologist Dr Schafer, by that date the offender had:

11. [31]

    The offender left school during the course of Year 10 and attended TAFE for a few months. He has never been employed. In July 2016, when aged 18, he moved from Armidale to Sydney, initially living with Mr Bobak. After several months, he moved in with his mother, at Whalan.

12. [32]

    When the offender was aged four years and two months, he was assessed by a general practitioner, Dr Peter Louda, as having ADHD. Dr Louda noted:

13. [33]

    The offender was examined by a consultant paediatrician, Dr Parle, when he was still aged four. She stated in a report that the offender had “early onset of severe disruptive and aggressive behaviours” and that the parents had separated seven months before, “due to long-standing history of domestic violence”. Dr Parle continued:

14. [34]

    Dr Parle commenced the offender on a course of medication and in a later report said:

15. [35]

    The family were to move to Armidale and so Dr Parle referred the offender to Dr Wiles, a consultant paediatrician based there. In a report when the offender was aged five years and four weeks, she reported him as having ADHD and responding to Ritalin, and “Global delay”, including language delay and not being ready for school, “hence staying at Pre-school longer”. She reported that the offender had a paucity of imagination but “no other marked features of Asperger/Autism”. She identified as an issue: “Violence, lights fires”. Dr Wiles observed:

16. [36]

    Dr Wiles concluded:

17. [37]

    In a follow-up report a week later, Dr Wiles noted that “Billy came along because his Mum is so concerned about the lighting of fires”. Following a suggestion of Dr Wiles, the offender was assessed by a psychologist, Sally Collier, who was also a District School Counsellor in Armidale. She wrote to Dr Wiles while the offender was still aged 5, following on an earlier conversation with her, saying:

18. [38]

    The reference to DADHC is to the (then) NSW Department of Ageing, Disability and Home Care, which provided specialist services to persons who have an intellectual disability.

19. [39]

    Dr Wiles saw the offender again when he was aged eight. She identified the following “Issues”:

20. [40]

    Dr Wiles noted that Ms Krey claimed she had run out of the medication prescribed for the offender’s ADHD (being dexamphetamine) but, in my view, the terms of the report strongly imply that Dr Wiles suspected it was being taken by Ms Krey or another adult. Dr Wiles also noted that the offender was significantly underweight and that there appeared to be food shortages in the home.

21. [41]

    Excerpts from a document from the “Child Court Clinic”, bearing a facsimile date of 18 December 2006, refer to the offender as:

22. [42]

    Further on, the report stated:

23. [43]

    The report recommended that the offender be referred to a neuropsychiatrist for specialist clinical management of his pre-psychotic symptoms. It noted:

24. [44]

    An excerpt from an undated report of the Hunter New England Area Health Service, which appears to have been generated at about this time, refers to the offender and his family as follows:

25. [45]

    Dr Wiles saw the offender when he was aged nine, with his “carer”. The identified issues were, other than those already identified by her when he was aged eight: “Epilepsy … Maternal drug abuse and neglect, currently in the care of DOCS … Anxiety high levels relating to the above”. Dr Wiles noted that the offender was seeing a worker with the Physical Abuse and Neglect of Children section (“PANOC”) of the NSW Department of Family and Children’s Services (as it then was).

26. [46]

    Dr Wiles prepared a report dated 13 November 2007, when the offender was still aged nine, to be forwarded to the offender’s new paediatrician in Sydney. She noted that the offender had been with the same carer for the previous 18 months and was to be returned to his mother’s care “by the courts”. She identified the issues as follows:

27. [47]

    In his report dated 7 January 2008, Dr Louda noted that the offender had been under the care of a paediatrician in Armidale. He stated:

28. [48]

    The next report by Dr Wiles is dated 11 June 2008, on which date she had seen the offender with his previous carer. The offender was aged 10. It appears that he was returned to their care in Armidale, from Sydney, where he had resided with his mother. Since his return, there had been two major “behaviour explosions” at the end of the school day. Dr Wiles reported: “He is angry and is reported to be saying adults are mean, saying adults are hitting him”.

29. [49]

    The next report by Dr Wiles is dated 18 February 2009, when she saw the offender with a new foster mother. The identified issues were:

30. [50]

    A report dated 15 December 2010, by Donna McGushin, who was a child protection counsellor with PANOC, referred to a report dated 1 February 2010 by the Child Protection Counselling Service (“CPCS”):

31. [51]

    In a report dated 17 August 2010, Dr Nick Kowalenko, child psychiatrist, stated he had assessed the offender in the company of his foster parents. He stated that he had previously seen the offender in 2005 and again in 2007. The first time was with his grandmother. In relation to the treatment of the offender with Epilim, Dr Kowalenko said:

32. [52]

    The PANOC report by Ms McGushin, dated 15 December 2010, was addressed to a caseworker with the Out of Home Care section of the NSW Department of Family and Community Services. It noted:

33. [53]

    The next report by Dr Wiles is dated 29 June 2011, when the offender was aged 13. He had been living in a community house (“Life without Barriers”) with multiple carers for the previous three months. Dr Wiles said: “He tells me he has not been suspended again from high school”. Later in the report, Dr Wiles said:

34. [54]

    The next report by Dr Wiles is dated 12 October 2011, on which date she saw the offender with a new “house mother”. She said:

35. [55]

    Dr Wiles saw the offender on 14 November 2012, when he was aged 14, with one of his “Life Without Barriers” carers. In a report of that date, she noted the current issues included:

36. [56]

    In a report dated 29 October 2013, Dr Wiles noted that the “Life Without Barriers” community house had dissolved and the offender was now living with his former carer. She said: “Billy was leaving home each day for school but not turning up to classes. 20 day suspension resulted”.

37. [57]

    In her last report tendered in evidence, dated 14 May 2014, Dr Wiles noted that the offender had a:

38. [58]

    The NSW Police Custody Management Record for the occasion of the offender’s arrest has an entry that the “Detained person stated he cannot read or write”. As noted earlier, a support person was deemed appropriate and arranged, being Rebecca Palu. At 9:05pm, while waiting to be interviewed, the offender asked Sergeant Anderton: “The person I stabbed, can you tell me anything about him?” At the commencement of the formal interview, police indicated that they were aware, from papers they located at Mr Bobak’s residence, that the offender suffered from ADHD and PTSD.

39. [59]

    Mr Bobak said that the offender had lived with him for about six months before he moved in with Ms Krey. For a few months of that period, AJ lived there with the offender. The couple appeared to get along well. At that time, Mr Bobak’s household included his wife and mother, who have both since died. Following the offender being placed in the Minister’s care, he had in the order of 16 carers. On the night of the incident, Mr Bobak told police that: “He’s only 19 but he’s only like 13, 14 in the brain”, which he explained in evidence was a reference to the offender’s apparent level of maturity. Mr Bobak said that when the offender went to live with Ms Krey, she stopped giving him medications that he was prescribed. There was no evidence as to what the medications were for.

40. [60]

    In her statement, Ms Krey said:

41. [61]

    AJ gave evidence of an incident that had occurred shortly after they started living at Number 93. Ms Krey asked AJ to walk to the shops to buy something. AJ agreed. The offender wanted to accompany her, but she preferred to go for a walk by herself. The shop was about 10 minutes away. The offender became very upset and took a butter knife and tried to cut his throat. A male friend of the offender, aged 14, was present, and he and AJ managed to stop the offender, but not before he had left “a couple breaks” of skin on his throat. Mr Bobak gave evidence that a few months before the stabbing, he observed a mark on the offender’s neck. The offender declined to explain it, but AJ told him what had happened.

42. [62]

    In a report dated 16 February 2009, Dr Louda said:

43. [63]

    Mr Bobak said that the offender’s mother, who was his daughter-in-law, was a chronic drug user over most of the 26 years he had known her. A death certificate in respect of Ms Krey was tendered in evidence. It indicated that the date of death was between 15 and 17 July 2018. The cause of death was expressed to be: “Consistent with fentanyl toxicity”. I note that fentanyl is an opioid that is often an abused prescription drug.

44. [64]

    Dr Schafer explained the basis of her diagnosis of FASD in a report dated 20 September 2018:

45. [65]

    In her report dated 7 July 2020, Dr Schafer said:

46. [66]

    Dr Pulman expressed reservations as to Dr Schafer’s diagnosis of FASD, preferring a diagnosis of complex PTSD:

47. [67]

    In evidence, Dr Pulman explained how the offender’s complex PTSD could have prompted his gross overreaction to the deceased:

48. [68]

    I note Dr Pulman’s evidence that FASD may be conducive to treatment, to some extent:

49. [69]

    When taken to Dr Pulman’s diagnosis of complex PTSD, Dr Schafer said:

50. [70]

    In his report dated 17 September 2018, Dr Allnutt was of the opinion that the offender’s “lifetime of behavioural problems” collectively constituted an intermittent explosive disorder, which is an abnormality of mind arising from an underlying condition:

51. [71]

    In the judgment on verdict, the Court noted a combination of factors that culminated in the offender taking the deceased’s life. By ceasing to reside with his paternal grandfather and moving in with his mother at Number 93, the offender no longer had the benefit of his grandfather’s supervision and, critically, he stopped taking his medication. It is apparent from the documentary material concerning the offender’s childhood and adolescence that his medication had a calming influence on him, and when he did not take it, he became aggressive. It is also apparent that, from the age of five, whenever the offender was in the care of his mother, his behaviour deteriorated.

52. [72]

    Stabbing as a violent act had a direct connection to the violence the offender had endured as a toddler, as is apparent from the reference to him engaging in stabbing motions when aged four, and of knives having to be hidden from him at that age. The incident some weeks earlier, when the offender took a knife to his neck because he was unable to accompany AJ to the shops, demonstrated a marked deterioration in his capacity to control himself and was an instance of resorting to a knife (on that occasion, a butter knife) to act out his frustration.

53. [73]

    Ms Krey remarked in her statement to police that, although she and the offender frequently argued, the argument between them that preceded the stabbing was unprecedented in its aggressiveness and violence and included threats by the offender to stab his mother, which was moments before he attacked the deceased.

The objective seriousness of the offence

1. [74]

   I find that the offender did not plan the offence against the deceased: s 21A(3)(a) of the CSP Act. The deceased engaged the offender immediately before the attack and said something to him that was interpreted as mildly insulting. However, the offender’s response was so disproportionate that I find that the attack was unprovoked.

2. [75]

   The attack was without motive, as acknowledged by the offender when asked by police why he had stabbed the deceased. The explanation for the occurrence of the offence lies partly in the offender’s substantial impairment of his capacity to control himself, being the reason that he was convicted of manslaughter rather than murder. Motive and a mental condition that is causally connected to the offence are relevant considerations as to the objective seriousness of the offence: Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 at [112]. See also Biddle v R [2017] NSWCCA 128 per Hoeben CJ at CL at [68].

3. [76]

   The use of a weapon was an aggravating factor: s 21A(2)(c) of the CSP Act. Having regard to the number, depth and location of knife wounds suffered by the deceased, I find that it was a sustained attack and the offender’s intent was to kill the deceased, who was unarmed and did not offer any resistance. The offender knew the deceased was affected by alcohol, as is apparent from what he said during his interview by police.

4. [77]

   In all those circumstances, I find that the objective seriousness of the offence is high.

The victim impact statement

1. [78]

   A victim impact statement, written by the eldest daughter of the deceased, Salati Sini, on behalf of herself, her two sisters and three brothers and their extended family, was read out. In her statement, Ms Sini described something of the profound impact that their father’s death had on her and her siblings Peniamina, Taunese, Ieremia, Mele and Lutu. I offer the Court’s condolences to Salati, each of her siblings and her family, for their loss, suffered in such terrible circumstances.

2. [79]

   I acknowledge Ms Sini’s statement pursuant to s 3A(g) of the CSP Act, namely, as recognition of the harm done to the community.

Subjective considerations

1. [80]

   The offender has one entry on his criminal record, a shoplifting matter involving chocolate bars when he was aged 15, which was dismissed pursuant to s 33 of the Mental Health (Forensic Provisions) Act 1990 (NSW): s 21A(3)(e) of the CSP Act.

2. [81]

   I find that the offender was of prior good character at the time of the offence: s 21A(3)(f) of the CSP Act.

3. [82]

   The offender had offered to plead guilty to manslaughter through his legal representatives on 15 April 2020, which was approximately five and a half months before the commencement of the trial and 14 months after he had been committed for trial. Ordinarily, that would not be regarded as an early offer to plead guilty to a lesser offence, but the history is complicated by the fact that the offender had been assessed by Dr Nielssen, in a report dated 17 June 2018, as being unfit to be tried. Following a fitness hearing, he was found unfit to be tried on 21 June 2019 and, following a second fitness hearing, was found fit to be tried on 5 March 2020.

4. [83]

   In my opinion, it was not open to the offender’s legal advisors to obtain final instructions for a plea of guilty to a lesser charge whilst he remained unfit to be tried. The offer to plead was conveyed to the Crown six weeks after the offender was found fit to be tried. In those circumstances, I find that the offer to plead guilty to manslaughter was made at the first opportunity when it was reasonable for him to do so: Haines v R [2016] NSWCCA 90, at [30]. I understand that the Crown accepts that proposition and that a discount of 25 per cent is appropriate.

5. [84]

   The offender expressed regret when interviewed by police on the night of the offence and to Dr Katie Seidler, forensic psychologist, who noted that the offender: “expressed seemingly genuine regret and remorse for his offending behaviour”. The terms of the offender’s expressions of regret were simplistic, in keeping with his language usage and low average level intelligence, but I accept them to be genuine.

6. [85]

   An offender’s offer to plead guilty to manslaughter may be evidence of remorse: Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 at [22]. The offender’s offer to plead guilty to manslaughter is consistent with his open admission to police that he had stabbed the deceased and caused his death, even though he did not recollect the act. Although the Crown case that the offender killed the deceased was very strong, I find that the offer to plead was also an expression of remorse.

7. [86]

   It was submitted on behalf of the offender that his moral culpability was reduced because of the social environment of extreme deprivation that he endured in his formative years. Reliance was placed on Bugmy, in which the plurality said:

8. [87]

   The material relied upon by the offender to advance the Bugmy principle is the same material that is relevant to the genesis of the diagnosed mental conditions. However, there is a discrete area relevant only to the Bugmy principle, which is the extent to which his childhood and adolescent social environment, in particular, the violence in the family environment, reduced his moral resistance to resorting to violence. In any event, an overlap of the principles does not, in my view, reduce their application.

9. [88]

   The circumstances of this offence excite both aspects identified by the plurality in Bugmy; while the offender’s upbringing mitigates his moral culpability, the circumstances and seriousness of the offence, and the offender’s unaddressed mental condition, raise a real concern about the need for protection of the community, to be addressed within the ambit of a sentence that is proportionate to the offence: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14.

10. [89]

    A report by Dr Seidler was tendered at the sentence hearing on behalf of the offender. Amongst other matters, Dr Seidler was asked for an opinion as to the offender’s treatment needs and prospects of rehabilitation. Dr Seidler examined him in prison on 10 February 2021 and noted as follows:

11. [90]

    Dr Seidler observed later in the report:

12. [91]

    Dr Seidler applied two assessment tools in order to gauge the offender’s propensity for future violent offending. One was the HCR-20, which is a structured clinical risk assessment guide to assist in considering issues pertinent to evaluating risk for future violence. According to the HCR-20, the offender was considered to pose a “generally moderate risk” of future violent offending, although it would likely increase in certain situations. Dr Seidler noted that the offender is:

13. [92]

    The other assessment tool used by Dr Seidler was the Violence Risk Scale (“the VRS”), which assesses the risk for violence in forensic populations by having regard to both static and dynamic risk factors that are considered to be associated with violent recidivism. The result was that, according to the VRS, the offender’s level of risk of violent reoffending falls in the “medium” range, the main contributors to that risk being the long term and chronic factors that have contributed to his psychosocial vulnerability and behavioural dysregulation. Dr Seidler explained that 29.6 per cent of offenders in the data utilised for the VRS with a similar score to that of the offender were reconvicted of a further violent offence within five years of release and 50.4 per cent were reconvicted for a non-violent offence within the same period.

14. [93]

    The offender has little in the way of family support. Dr Seidler thought that his relationship with his father is superficial and contact with his sisters is infrequent, and with his younger brother, rare. His main family support is his paternal grandmother.

15. [94]

    Dr Seidler made certain recommendations as to the offender’s future care:

16. [95]

    I conclude that the offender’s prospects of rehabilitation are dependent upon what services and treatment he receives in prison and in the community, following his release. If these are forthcoming, his prospects are positive, in view of his demonstrated capacity to lead a law-abiding life throughout a traumatic upbringing, until the commission of this offence. If they are not, his prospects are guarded.

17. [96]

    At the time of the offence, the offender was aged 19 years and 2 months. I take into account that in R v AEM [2002] NSWCCA 58 the Court (Beazley JA, Wood CJ at CL and Sully J) said:

18. [97]

    I am satisfied that no penalty other than imprisonment is appropriate: s 5 of the CSP Act.

19. [98]

    The offender has significant mental conditions that directly contributed to the offence, being FASD; complex PTSD; and an intermittent explosive disorder. Those diagnoses and the impact on the offender of his deprived background, activate considerations of reduced moral culpability and lessen reflection of general deterrence and retribution in his sentence, pursuant to the principles recognised in Director of Public Prosecutions (Cth) v De La Rosa and Bugmy.

20. [99]

    The degree to which those two issues directly contributed to the attack is to the extent that, without them, the attack would not have occurred. The attack was explosive, random and inherently lethal in nature, and thus far the diagnosed mental conditions remain unaddressed by treatment. I note Dr Seidler’s recent diagnosis of borderline personality disorder, as well. For the reasons explained in Director of Public Prosecutions (Cth) v De La Rosa and Bugmy, I consider that protection of the community remains a factor to be reflected in the sentence by way of specific deterrence. I will also reflect that concern in an adjustment to the non-parole period.

21. [100]

    The starting point sentence is a sentence of imprisonment for a period of 14 years 8 months, which is reduced to 11 years by virtue of the offender’s offer to plead guilty to manslaughter at the first opportunity when it was reasonable for him to do so.

22. [101]

    As I have observed, the offender has a profound need for treatment and services, without which his prospects of rehabilitation are guarded. It is therefore in the interests of the community, as well as in the offender’s interests, that he be subject to parole for an extended period. Accordingly, I find that special circumstances are made out.

23. [102]

    I make a recommendation to the authorities that the offender be assessed by Justice Health with a view to developing a program of treatment that addresses the offender’s diagnosed mental conditions.

24. [103]

    The offender has been remanded in custody since his arrest on the date of the offence, on 15 July 2017. The sentence will be backdated to commence on that date.

Sentence

1. [104]

   The offender is sentenced to a term of imprisonment comprising a non-parole period of 6 years and 6 months and a balance of the term of the sentence of 4 years and 6 months. The total sentence is 11 years, to date from 15 July 2017 and expiring on 14 July 2028. The offender will become eligible for release on parole when the non-parole period expires, on 14 January 2024.