R v Srsa

1. [1]

   HIS HONOUR: Lisa Srsa (“the offender”) pleaded guilty in the Local Court to a charge of manslaughter of her partner, Glenn Pedgrift (“the deceased”). The killing occurred on the afternoon of 10 October 2018 near their home at Blacktown.

2. [2]

   The basis of the plea is manslaughter by reason of substantial impairment pursuant to s 23A of the Crimes Act 1900 (NSW), as it was at the time of the offence. Manslaughter carries a maximum penalty of 25 years imprisonment: s 18(1) of the Crimes Act 1990 (NSW). There is no prescribed standard non-parole period.

The offence

1. [3]

   In considering the evidence before the court, findings of fact that tend to aggravate the appropriate penalty must be proved beyond reasonable doubt, whereas matters that mitigate the penalty must be proved on the balance of probabilities: R v Olbrich (1998) 45 NSWLR 538 at 543. I also note the following observations by Johnson J in R v Cahill (No 4) [2018] NSWSC 1896, at [16], with whom I respectfully agree:

2. [4]

   An agreed statement of facts which was tendered at the sentence hearing is to the following effect.

3. [5]

   At the time of the offence, the offender and the deceased were aged 50 and 47 respectively and had been in a relationship for about four or five years. They resided at an address in Blacktown I will refer to as “28 Thomson Street” (“Number 28”), which was a house formerly owned by the offender’s late father. Also residing at Number 28 were the offender’s son, who was aged 24, and the offender’s nephew, who was aged 20. The offender’s daughter, aged 21, would visit regularly with her child who at the time of the offence was aged four months (“the offender’s grandson”). The father of the offender’s son and daughter was the offender’s second husband, who also resided there.

4. [6]

   The offender and the deceased regularly consumed excessive amounts of alcohol and would argue with one another when intoxicated. Around late September 2018, two weeks before the offence, the arguments escalated. At this time, the arguments concerned “whether the offender had been unfaithful to the deceased”.

5. [7]

   On 9 October 2018, the day before the offence, the offender’s grandson underwent open heart surgery. The offender and the deceased visited him in hospital after the operation. They were both intoxicated and an argument ensued whilst they were at the hospital. That evening, the offender’s son heard the offender and the deceased yelling at one another at home.

6. [8]

   The next day, 10 October 2018, the deceased attended a Hotel in Blacktown (“the Hotel”), where he and the offender were regulars. At around 9am, he purchased five longneck bottles of beer and withdrew $50 from the offender’s bank account.

7. [9]

   At around 10am, the offender drank a bottle of beer at their home. She completed some household chores and attended a nearby shopping centre. At 12:27pm, while withdrawing money during the shopping trip, she noticed that the deceased had withdrawn money from her account. She later told police that this had angered her. She bought groceries and returned home.

8. [10]

   At around the same time, staff working at the Hotel discovered graffiti in the men’s toilets, which read: “Lisa’s a slut”, “for a good time call Lisa”, “Lisa’s a dog” and included the offender’s mobile number. The graffiti was extensive, covering the cubicles, the cubicle doors and the mirrors.

9. [11]

   The deceased, who was still at the Hotel, was confronted by staff. He said that he should not have graffitied the toilets, but that the offender was a “slut” and a “dog”. He said, “you should see my handy work at her place, all over her furniture, walls, doors”. The manager banned him from the Hotel for a month. He then left the premises.

10. [12]

    Staff at the Hotel called the offender to tell her about the graffiti, which prompted her to attend the Hotel. She was observed by staff to be “drawn and distressed”. She said, “I don’t need this, the baby is waiting to have an operation. I haven’t slept, I haven’t eaten, I feel sick. I’ve got to get the graffiti off”.

11. [13]

    The offender returned home and confronted the deceased about the graffiti. An argument ensued and escalated to such a point that the offender’s son intervened and told the deceased to leave the home. The deceased obliged.

12. [14]

    Thomson Street lay approximately North-South, with T-intersections at both ends. The deceased walked North along the Western footpath of Thomson Street. The offender took a steak knife from the kitchen and followed. When the deceased was a few houses down Thomson Street in the vicinity of Number 20, the offender approached and stabbed him once to his chest with the knife. The deceased continued North along the footpath until he reached the front lawn of Number 14, where he called out to some tradespersons who were working nearby.

13. [15]

    At about 5:10pm, one of those tradespersons heard a female yelling something to the effect of, “get back here” or “come back here”, “you fucking bastard”, along with other swearing and yelling. He then saw the deceased standing on the front lawn of Number 14. The deceased said, “hey bro, come over here”, before collapsing onto the grass. The tradesperson thought the deceased was intoxicated.

14. [16]

    Another witness, a woman who was working at an accommodation facility located across the street at Number 13, saw the deceased “stumbling along the footpath”, holding a “middy” bottle of beer. The woman heard the deceased say “hey fellas” to some tradespersons before collapsing. She went to check on the deceased immediately.

15. [17]

    The woman called emergency services at 5:15pm. During the call, the deceased stopped breathing and she commenced CPR, assisted by other members of the public, including the tradesperson. Police arrived at 5:23pm, closely followed by ambulance officers who attended to the deceased, however, he was pronounced dead at the scene.

16. [18]

    An autopsy report authored by Dr Janse Van Vuuren, dated 14 March 2019, stated that the direct cause of death was a “single stab wound to the left side of the chest that went [through] the left internal artery and terminated in the right ventricle of the heart”.

17. [19]

    The deceased had a blood alcohol reading (“BAC”) of 0.296 g/100mL. In a report dated 3 October 2019, forensic pharmacologist John Farrer gave an opinion that:

18. [20]

    A blood trail led from a large pool of blood outside Number 20 to where the deceased had collapsed. The knife, which was 23cm in length with a serrated blade of 10cm, was located near the blood pool. Blood on the knife matched that of the deceased.

19. [21]

    After stabbing the deceased, the offender returned to Number 28 and said to her son, “I stabbed him, I stabbed him”.

20. [22]

    At 5:26pm, the offender contacted Triple Zero and requested emergency services. The Triple Zero call, which was summarised in the agreed facts, was to the following effect. The offender told the Triple Zero operator that the deceased “got a stabbed heart … he’s been stabbed” and that he was “our friend who lives here”. The operator asked the offender where the person who stabbed him was, to which she replied, “I don’t know”. The operator then asked the offender who stabbed the deceased. She again replied that she did not know. When asked her name, the offender gave her maiden name. A voice was recorded in the background, later identified to be the offender’s son, yelling “what have you done, he’s dead”.

21. [23]

    Police attended Number 28 shortly after and arrested the offender. She had blood on her hands and was affected by alcohol. When asked why she stabbed the deceased, she responded, “I didn’t say I stabbed him, I threw the knife at him”. The offender was conveyed to Blacktown Police Station and placed in custody.

22. [24]

    The offender’s BAC was 0.142 g/100mL at 12:04am on 11 October 2018. In his report, Mr Farrer opined that the offender’s BAC at the time of the offence was most likely 0.260 g/100mL, falling within a range from 0.200–0.310 g/100mL. A report by forensic pharmacologist Professor MacDonald Christie dated 24 November 2019 which was tendered at the sentence hearing gave a similar opinion, that the offender’s BAC was likely to have been 0.270 g/100mL at the time of the offence, falling within a range from 0.210–0.310 g/100mL.

The interview by police

1. [25]

   The offender participated in an electronically recorded interview with police in the early hours of 11 October 2018. A summary of the interview was tendered into evidence as part of the agreed facts.

2. [26]

   The offender said that she and the deceased had been “arguing a lot over the last couple of months” and that the deceased had been calling her “very bad names and accusing me of things I don’t do”. She said the deceased had been “breaking the furniture”.

3. [27]

   The offender said that, on the day of the offence, she had consumed three or four longneck bottles of beer. Her first drink was at 10am and her last was at about 3 or 4pm. She had not taken any drugs other than “Lexapro” which was prescribed to her for depression and anxiety.

4. [28]

   The offender told police that she woke up at around 5am on the day of the offence and did some household chores. The deceased went for a walk and she watched television. The deceased returned home and at around 9 or 10am he went to the Hotel, returning with five beers. The offender went out to buy some washing powder and when she returned home, they had an argument. The deceased left the home again. The offender went out to buy meat for dinner, returned home and started cooking. The offender said she could not recall anything after that, but that she “must have had the drinks”.

5. [29]

   She said that she was cooking and cleaning and preparing to go to the hospital that night to visit her grandson. Her son was “cranky”, because the deceased had been “smashing and bashing and carrying on the night before”. She spoke to her son and nephew “out the back” but could not recall the conversation. She said she did not know where the deceased was.

6. [30]

   When asked to clarify her movements that day, the offender said she went looking for the deceased at around 10am, found him, took the beers from him that he had bought at the Hotel, and then bought the washing powder and went home. She said she was angry with the deceased and told him not to return home because he had taken money out of her bank account and used it to buy “pot”.

7. [31]

   The offender said that in the late afternoon she walked to the bottle shop at the Hotel to buy more alcohol and was told about the graffiti by the Hotel staff. She then went home and cooked dinner. She could not recall whether the deceased was home or not. She said she “went looking for him or something, or he’s started something, had words”, because the deceased had graffitied her late father’s furniture at home. In evidence, the offender said that he graffitied the furniture the same day.

8. [32]

   The offender told police that she could not recall what occurred after she went looking for the deceased. She said she could have phoned the police, but she did not know. She said she did not know why she was being arrested.

9. [33]

   When asked about the statements she made to police at the scene, namely, that she did not stab the deceased but “threw” the knife at him, she said: “I threw the knife because [the deceased] was carrying on at me as well”. She said she “aimed for [the deceased]” and that she was quite close to him. She confirmed that it was the steak knife that she threw, and when asked where she took it from, she said “it would have been in the kitchen I think”.

10. [34]

    The offender could not recall phoning Triple Zero. She said that when she got home, she went inside to look for cigarettes and then the police were there.

11. [35]

    The offender said that the deceased did not try to assault her that afternoon, but that he had been “angry at me for weeks” and “the night before he did assault me a little bit, so I just ignored him”. She said that the assault involved the deceased “throwing beer” on her and “grabbing her hair”.

12. [36]

    When asked if she stabbed the deceased, the offender stated “why would I stab him with a knife? I don’t even know why I had the knife”. She said she did not “understand why I went walking with the knife” and that she was “petrified” of knives.

Gaol calls made by the offender

1. [37]

   The offender made telephone calls to family members from gaol between 18 October and 28 December 2018 in which she denied intentionally killing the deceased.

2. [38]

   On 18 October 2018, she told her daughter that she did not murder the deceased and that the incident was an accident, and on 31 October 2018 that she was “being punished for something that was [an] … accident and he’s caused all of it anyway really”.

3. [39]

   On 21 and 27 October 2018, the offender told her brother that she could not wait to be released from custody because “it was an accident” and that she felt like she was being punished “for something that was [an] … accident”. She also told her brother that she was beside herself “because [the deceased’s] not going to be there for me no more”. She maintained the incident was an accident in further calls on 7, 9 and 18 November, and on 17 December 2018.

4. [40]

   On 24 October 2018, the offender told her uncle that the incident was an accident and that she was “not a fucking murderer”. She said that she did not chase the deceased down the street, but “just followed him down a couple of houses”. She later told her uncle, on 28 December 2018, that she missed the deceased and that “it’s just … horrible … what happened was an accident … it’s hard to get your head around it, I think I’m still in shock”.

Victim impact statements

1. [41]

   Victim impact statements, composed by the deceased’s mother, brother, three sisters and niece were read at the sentence hearing. Glenn Pedgrift was an Indigenous man who grew up in a loving family. Through the statements, he shone through as a loving, mischievous, hard-working son, brother and uncle. On behalf of the Court, I offer my condolences to his family. The witness from the accommodation facility also provided a statement that recorded the traumatic experience of providing first aid to the deceased, and its lasting impact.

2. [42]

   The Crown has made an application, pursuant to s 30E(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSP Act”), that the victim impact statements of the deceased’s family members be taken into account by the Court in connection with the determination of the punishment for the offence on the basis that the harmful impact of his death on his family is an aspect of harm done to the community. The application was not opposed, and I propose to take the victim impact statements into account in this way.

The offender’s background

1. [43]

   Reports of three forensic psychiatrists were tendered, each of which contained a history taken from the offender. The reports were by Associate Professor Carolyn Quadrio, dated 14 March 2020; Professor David Greenberg, dated 26 May 2020 and 27 January 2021; and Dr Richard Furst, dated 5 March 2021. The offender gave evidence at the sentence hearing. The picture that emerges of her background from those sources is as follows.

2. [44]

   The offender was born in Seven Hills in 1967 to a father who was Polish by birth and a mother who was of European and Aboriginal descent. She has one surviving sibling, an older brother, with whom she has a good relationship. She had another older sibling, who died soon after birth.

3. [45]

   At school, the offender had no academic or social difficulties, other than struggling with maths and generally being shy.

4. [46]

   The offender’s parents had a turbulent relationship, separating for the first time when the offender was 8 years old. Her father drank alcohol excessively until she was around 10 years old and was a strict, violent and controlling presence in the family home. Professor Greenberg reported:

5. [47]

   The offender’s parents reunited, but then separated again for around a year when the offender was 11 or 12 years old. They then bought a house in Casula, where they lived throughout the offender’s teenage years. The offender attended high school nearby, developing close friendships and coping well with schoolwork. However, she experienced anxiety performing public speaking tasks, which continued into her working life.

6. [48]

   While the offender was in early high school, her mother started drinking alcohol excessively. This steadily worsened over time, escalating to such a point that the offender’s mother was sent to a “special home” in Campbelltown. She was subsequently treated with electroconvulsive therapy and Valium. The offender noted in an interview with Associate Professor Quadrio that:

7. [49]

   Upon leaving school at the end of Year 10, the offender worked in the Public Service in an administrative and secretarial role, whilst also undertaking a typing and clerical course at TAFE. When aged 18, she started working for a local newspaper, initially in various clerical and training roles, and continued in that employment for 25 years.

8. [50]

   The offender’s parents finally separated when she was in her 20s. Her mother re-partnered with a man she described as “an alcoholic but a good man”.

9. [51]

   The offender’s parents both died of natural causes in 2012, about 11 months apart, when they were aged about 70. This had a significant impact on the offender; she was “devastated” and told Associate Professor Quadrio that she: “missed them so much; I still do”.

10. [52]

    In 2019, while in custody, the offender disclosed for the first time that between the ages of 10 and 12 years old she was sexually abused by a prominent person with a public profile in her local community. She described the alleged offence in an interview with Dr Furst as follows:

11. [53]

    The offender said that when she and her friend would go horse riding, this man “rode on the same horse behind her and put his hand on her genitalia”. This allegedly occurred a “few times over a period of a few months”. The offender also went with the man and his family to his caravan park “where he touched her again: ‘It hurt’”.

12. [54]

    When asked about the psychological effects of the sexual abuse, the offender said that it was: “Always there. I was strong. Got on with life. Very possessive over my children and grandson. I don’t know how it affected me mentally”, and that:

13. [55]

    The offender married for the first time in 1989 or 1990, when she was aged 21. Her first husband “gambled and drank” and could be “nasty when he was drinking; he would call her names and push her”. After about two years of marriage, the offender found him in bed with another woman.

14. [56]

    The offender’s parents arranged for her and her first husband to have couples counselling through their church, but her husband was not interested, so they divorced. She was “heartbroken” and “terribly upset but angry too”.

15. [57]

    The offender commenced a relationship with her second husband when she was in her early 20s. They married in 1992 and had two children, in 1994 and 1998.

16. [58]

    The offender’s father left her a sum of money as part of his estate. With it, she bought her second husband a car and a trailer and paid off his debts. She also gave some money to her second husband’s sister. The offender said that her second husband “went through all the rest of it; there is none left now”.

17. [59]

    The offender described her second husband to Associate Professor Quadrio as being “very jealous and possessive”. In her report, Associate Professor Quadrio stated:

18. [60]

    The offender’s relationship with her second husband ended in 2012 after more than 20 years together, when she learned that he had been unfaithful to her. However, they never formally divorced. There were custody issues with the offender’s children, who were around 13 and 17 years old at the time of the separation. The offender explained the custody issues to Associate Professor Quadrio, who related them in the following terms:

19. [61]

    The offender also had trouble sleeping and self-medicated with alcohol, increasing her consumption to four longneck beers per day.

20. [62]

    In 2012, the offender commenced a relationship with another man, prompting a domestic violence incident in which her second husband went to her father’s home where she was residing, picked her up and threw her onto the floorboards. The offender called police, her husband was charged and an apprehended domestic violence order (“ADVO”) was made against him.

21. [63]

    The offender’s back was severely injured in the incident, requiring hospitalisation. According to hospital discharge summaries, the incident was witnessed by the offender’s daughter, who was 14 years old at the time.

The offender’s relationship with the deceased

1. [64]

   The offender’s relationship with the deceased commenced in around 2013. They met at a pub and were “really good friends” for about a year before their relationship commenced. At first, the deceased was “a lot of fun” and “they got on very well”. However, they consumed excessive amounts of alcohol together, and the deceased would “have a couple of cones” of cannabis each morning.

2. [65]

   Around 2013 or 2014, the offender and the deceased moved in with the deceased’s niece at Quaker’s Hill. This was a positive experience for the offender. A year later, they relocated to Number 28, which was the offender’s late father’s house. The offender’s two children were living in the house at the time, along with the offender’s second husband, reportedly because his “bad record” prevented him from renting a property.

3. [66]

   The offender and the deceased lived on the first floor, and the offender’s children lived on the second. The offender’s second husband lived in the garage, which had been converted into a living area; however, he also spent some time in the house. The offender’s second husband and the deceased “got on okay … sometimes they would drink together ‘and run me down’”.

4. [67]

   The living arrangement was intended to be temporary, as the offender had applied for state housing. However, her application did not proceed, reportedly because the deceased would not attend the relevant agency with her.

5. [68]

   Whilst at Number 28, the deceased became violent towards the offender. Associate Professor Quadrio reported the offender’s history as follows:

6. [69]

   This violence escalated in 2016. On 27 July 2016, a domestic violence incident occurred in which the deceased damaged some of the offender’s property. The offender related the incident to Associate Professor Quadrio as follows:

7. [70]

   On 4 October 2016, the deceased was fined $300 for destroying or damaging property and an ADVO was made, specifying the offender as the protected person. In a recorded interview at the time, the offender denied that the deceased had physically assaulted her and said that she loved the deceased. She said her children also loved the deceased and he loved them.

8. [71]

   In 2018, not long before the offence, there was an incident concerning a friend of the deceased, which was related by Associate Professor Quadrio in her report as follows:

The offender’s psychiatric history

1. [72]

   The offender started experiencing panic attacks in around 2009, while she was working at the newspaper. She described them to Professor Greenberg as “her heart pounding for a period of about five minutes”. Professor Greenberg noted:

2. [73]

   The panic attacks prevented the offender from carrying out basic tasks such as grocery shopping, taking a shower, attending church or performing any public speaking aspects of her role at the newspaper office. At one point, they occurred around 10 times per day, sometimes at night and accompanied by symptoms of insomnia. She said that they caused her to be taken by an ambulance from work on a few occasions.

3. [74]

   The offender was referred to a psychiatrist in 2009 and diagnosed with panic attacks associated with anxiety and depression. She was treated with an anti-depressant medication, Lexapro 20mg, which she has been taking ever since. She attended monthly consultations with the treating psychiatrist for a period of around five months. The medication decreased the frequency of her panic attacks, but they did not cease. When the newspaper moved its office into the city in around 2011 or 2012, the offender resigned, because the panic attacks prevented her from commuting.

4. [75]

   The offender’s depression commenced around the same time as her panic attacks. She told Professor Greenberg that she became depressed “approximately once per week”. She has never attempted suicide but has had suicidal ideation, once after an assault upon her in a domestic violence context and the other 18 months prior to the offence, when she was told by the deceased that she was a failure.

The offender’s drug and alcohol history

1. [76]

   The offender began drinking alcohol when she was 16 years old and on a regular basis from her late 30s, initially to relax after work and assist her to sleep. When the panic attacks started, she drank a lot of alcohol, on a daily basis.

2. [77]

   The offender’s drinking also escalated after the break-up of her second marriage in 2010, and again after her parents’ deaths in 2012. She reported to Professor Greenberg that after her parents died, she would consume up to 12 bottles of beer per day, which caused her to occasionally experience blackouts and alcoholic shakes.

3. [78]

   The offender drank consistently during her relationship with the deceased, reportedly around three longneck bottles of beer per day. However, she denied using illicit substances, other than cannabis on one occasion as a teenager and once with the deceased.

Psychiatric assessments

1. [79]

   Associate Professor Quadrio assessed the offender via Audio-Visual Link (“AVL”) on 16 July 2019 and spoke to her via telephone on 5 and 9 September 2019.

2. [80]

   Associate Professor Quadrio diagnosed the offender with complex post-traumatic stress disorder (“complex PTSD”) with the following comorbid conditions: chronic anxiety disorders (generalised, agoraphobic and panic); chronic depressive disorder; substance use disorder (alcohol); and enduring (post-traumatic) personality change. Associate Professor Quadrio also diagnosed the offender with a neurocognitive disorder (alcohol related).

3. [81]

   Associate Professor Quadrio explained her diagnoses:

4. [82]

   With respect to her diagnosis of a neurocognitive disorder (alcohol related), Associate Professor Quadrio stated:

5. [83]

   Professor Greenberg’s reports were tendered by the Crown at the sentence hearing. Professor Greenberg’s report dated 26 May 2020 followed an initial assessment of the offender via AVL on 6 May 2020 and a further assessment via telephone on 14 May 2020.

6. [84]

   He diagnosed the offender with alcohol use disorder; panic disorder with agoraphobia; depression; mild neurocognitive disorder (preliminary); and PTSD. Professor Greenberg elaborated:

7. [85]

   Professor Greenberg provided a supplementary psychiatric report dated 27 January 2021, its purpose being to clarify the:

8. [86]

   With respect to a diagnosis of PTSD, Professor Greenberg stated:

9. [87]

   In his report dated 5 March 2021, Dr Furst opined that the offender meets the criteria for social anxiety disorder; panic disorder with agoraphobia and alcohol use disorder. Dr Furst explained:

10. [88]

    With respect to the diagnosis of complex PTSD made by Associate Professor Quadrio and, to a lesser extent, Professor Greenberg, Dr Furst opined:

11. [89]

    Dr Furst also noted that relevant considerations include the damaging effects of long-term alcohol consumption on the offender’s brain; the presence of a depressive disorder; and the increased dose of Lexapro that the offender was prescribed five days before the offence occurred.

12. [90]

    With due respect to Dr Furst, I am satisfied on the balance of probabilities that at the time of the offence, the offender was suffering from an untreated complex PTSD. I am satisfied that she had the comorbid conditions identified by Associate Professor Quadrio and Professor Greenberg, which I note overlap to some extent.

13. [91]

    Professor Greenberg was of the view that further testing was required to confirm whether the offender had a mild neurocognitive disorder, whereas Associate Professor Quadrio was of the opinion that it was established. Having regard to the corroborative material that she identified in her report in the excerpted passage at [82] above, on the balance of probabilities, I accept Associate Professor Quadrio’s diagnosis of a mild neurocognitive disorder (alcohol related) with its consequent effects on the offender’s memory and capacity for establishing time sequences.

The nature of the partial defence to murder of substantial impairment

1. [92]

   Section 23A of the Crimes Act has recently been amended. At the time of the offence, it relevantly provided:

The basis of the application of the partial defence of substantial impairment

1. [93]

   I am satisfied that the diagnoses made by Associate Professor Quadrio and Professor Greenberg, including the diagnosis of complex PTSD, qualify as “underlying conditions” for the purposes of s 23A(8) of the Crimes Act.

2. [94]

   Section 23A(1)(a) specifies three capacities, one or more of which must be substantially impaired in order for the partial defence to apply: namely, the person’s capacity to understand events; and/or to judge whether the person’s actions were right or wrong; and/or to control himself or herself. It is necessary to determine which of these bases applies to the offender.

3. [95]

   In her report, Associate Professor Quadrio concluded that the offender’s capacity for “judgment”, “reasoning” and self-control were affected; that is, the first and third bases specified in s 23A(1)(a) were made out. She stated:

4. [96]

   Professor Greenberg excluded the first two bases and, in relation to the third, was of the view that there were two competing views available on the evidence. The first view (“the preferred view”), set out at pages 48 and 49 of his first report, was that the offender’s capacity for self-control was substantially impaired by an abnormality of mind arising from underlying comorbid conditions. The other view (“the alternative view”) was that her capacity for self-control was substantially impaired by her severe intoxication and anger. On the alternative view:

5. [97]

   On this alternative view, the partial defence would have been unavailable to the offender, since the substantial impairment would have been primarily due to her intoxication rather than an abnormality of mind: s 23A(3) of the Crimes Act. It is apparent from the Crown’s acceptance of the plea that it acceded to Professor Greenberg’s preferred view. That is unsurprising, given Professor Greenberg’s opinion in his subsequent report that, referring to Associate Professor Quadrio’s opinion:

6. [98]

   I accept the opinions of Associate Professor Quadrio and Professor Greenberg that the offender’s capacity to control herself was substantially impaired. Correspondingly, I am not satisfied that her capacity to understand events or to judge whether her actions were right or wrong, were substantially impaired.

Objective seriousness

1. [99]

   A mental disorder is relevant to a determination of objective seriousness: see Tepania v The Queen (2018) 275 A Crim R 233; [2018] NSWCCA 247 at [112]. In the context of manslaughter by substantial impairment, the offender is taken to be substantially impaired by virtue of the acceptance of the plea by the Crown. In assessing the objective seriousness of an offence of manslaughter by substantial impairment, the focus in terms of the mental disorder is on the extent to which the degree of impairment exceeded what was required to activate the partial defence, provided it contributed to the commission of the offence: Catley v R [2014] NSWCCA 249; R v Fiona Barbieri [2014] NSWSC 1808 at [88]. See also Ukropina v R [2016] NSWCCA 277 at [35]-[38].

2. [100]

   The Crown submitted that “it is open to the Court to find” that the offender’s impairment “was at the lowest end of the scale”, referring to the pages in Professor Greenberg’s report dealing with the alternative view, that the offender’s substantial impairment was due to intoxication. However, as noted, it is apparent that Professor Greenberg’s preferred view was that the offender’s substantial impairment was due to her psychiatric and psychological diagnoses. I do not think that the alternative view necessarily mitigates the extent to which the preferred view applies.

3. [101]

   It is appropriate to reproduce that part of Professor Greenberg’s report in which he explained his preferred view, which he later affirmed:

4. [102]

   On the basis of this passage, and Associate Professor Quadrio’s opinion, I conclude that the degree of impairment was significantly more than what was required to activate the partial defence.

5. [103]

   Another aspect of objective seriousness is the intent that accompanied the act causing death. In evidence, the offender said that she did not know what her intention was, by which I understood her to mean that she could not recall it, because of her intoxication, although she accepted as an agreed fact that she stabbed the deceased. It was submitted on behalf of the offender that, because of the offender’s extreme degree of intoxication, “she probably acted without [an intention to kill] in that she was not fully aware of the severity of her actions”. Reliance was placed on the opinion of Professor Christie, who stated:

6. [104]

   I note Professor Greenberg’s agreement with these observations by Professor Christie:

7. [105]

   As to the likely degree of force used by the offender in stabbing the deceased, there is no evidence as to the depth of the knife wound, other than that it was sufficient to penetrate the deceased’s heart, or of what clothing, if any, the knife first penetrated. However, a photograph of the knife is part of the agreed facts. It had a finely narrowing point, such that I conclude that it is likely that only minimal force would have been necessary to penetrate clothing of medium thickness.

8. [106]

   In evidence, the offender denied that at the time she stabbed the deceased, she intended to kill him. She maintained a degree of uncertainty, and perhaps ambivalence, as to what she knew at the time of the Triple Zero call as to where on the deceased’s body she had stabbed him. Although she told the operator that the deceased had been stabbed in the heart, when it was put to her that therefore she knew she had stabbed him in the heart, she agreed that she knew that she had stabbed him in his chest, but said: “I wasn’t sure whether it was the heart or not, I only found it out recently when all this happened, when I came into custody”.

9. [107]

   I am satisfied beyond reasonable doubt that the intention of the offender was to stab the deceased to the chest and in so doing, that she appreciated that it was a life-threatening injury. She left her house with the knife that she had specifically obtained; she called out to the deceased to come to her; she stabbed him once; and left the knife at the scene and returned home. These acts bespeak a specific purpose in going after the deceased and that the purpose was achieved. If not for her level of intoxication, those same acts, given that the single stab wound was to the deceased’s chest, would also bespeak an intention to kill. However, given her level of intoxication, for reasons explained by Professor Christie in the extracted passage at [103] above, that conclusion does not necessarily follow.

10. [108]

    In evidence, the offender conceded that, at the time of the call, she did not want to accept responsibility for stabbing the deceased, and thus she lied by not telling the operator, when asked, who had stabbed the deceased. The fact that the offender told lies in that call is not necessarily evidence of her having knowingly stabbed the deceased in the heart; that is, having inflicted an injury with an intention to kill. Her motive in lying may have been the realisation of the consequences of what she had done, having seen the blood flow which inevitably would have resulted from her having stabbed him in the heart; she may have deduced that the wound had penetrated his heart, rather than that having been her intention at the time she stabbed him.

11. [109]

    In view of the expert opinions of Professors Christie and Greenberg, I am not satisfied beyond reasonable doubt that at the time that the offender stabbed the deceased, she intended to kill him. I find that the offender’s intent in deliberately stabbing the deceased in his chest was to cause him really serious bodily harm (grievous bodily harm).

12. [110]

    I turn now to another issue which, in the context of this case, bears on where to fix the objective seriousness of the offence, which is that of non-exculpatory provocation. There were a series of provocative acts by the deceased that day. At 12:27pm, the offender discovered that the deceased had withdrawn money from her bank account, which she believed would have been to buy cannabis. In the early afternoon, she was contacted by the Hotel at which they were both regular drinkers, which she attended, to be informed about the graffiti by the deceased in the men’s toilets. That followed on some six months of accusations by the deceased that she had been having sexual liaisons with another man, which she said were false. The same day, the deceased had used a felt pen to write or draw graffiti on her late father’s furniture in their home. She saw the graffiti when she returned home from the Hotel. In evidence, she said:

13. [111]

    I find that the offender’s attack on the deceased is partly explicable as being a response to provocation. The Crown accepts that the deceased engaged in provocative behaviour but submitted that it warranted “very minimal attribution” in formulating the sentence. I am of the view that the effect of the provocation on the offender is to be understood in the context of her long-standing anxiety and depression, and the embarrassment and humiliation associated with it occurring in the Hotel in which they were regarded in that community as regulars.

14. [112]

    A matter that increases the objective seriousness of the offence is that the argument that immediately preceded it, although heated and prompted by the disgraceful conduct of the deceased in terms of his graffitiing of the men’s toilet at the Hotel and the offender’s late father’s furniture, was nevertheless non-violent, and the deceased had complied with a direction to leave the house.

15. [113]

    The Crown submitted that the offending was “at the higher end of the mid-range of objective seriousness”. The offender submitted that it was “below the middle of the range”. I conclude that when all the relevant factors are taken into account, the objective seriousness of the offence was just below mid-range.

Relevant aggravating and mitigatory circumstances

1. [114]

   I make the following observations in relation to relevant circumstances of aggravation and mitigation identified in s 21A of the CSP Act.

2. [115]

   As to aggravating factors, the offence involved a knife (s 21A(2)(c)). There was a degree of planning, although minimal; moments before the offence, the offender took a knife from the kitchen and pursued the deceased up the street. In my view, the deceased was vulnerable (s 21A(2)(l)), because of his extreme inebriation.

3. [116]

   As to relevant mitigating factors, I have already referred to the deceased’s provocative conduct shortly before the offence (s 21A(3)(c)). I note the following further mitigatory considerations.

4. [117]

   As noted, the planning of the offence was minimal. It could equally be said that the offence occurred in a broader context of a heated argument between the offender and the deceased, immediately after they were separated by the offender’s son.

5. [118]

   The offender’s only prior criminal conviction is for contravening an AVO, on 22 March 2015. The offender’s daughter was named as the protected person. A condition of the AVO was that the offender not approach her daughter within 12 hours of consuming alcohol or illicit drugs.

6. [119]

   A facts sheet in relation to that matter was tendered, which was to the effect that the offender consumed three beers at a friend’s house at around 4pm, then went to Number 28 where she intended to stay the night; she was residing elsewhere at the time. A few hours later, at around 9:30pm, the offender’s daughter arrived with her boyfriend. An argument ensued, and the offender’s daughter called the police. The offender admitted to police that she had consumed three beers earlier that day. She was fined $250.

7. [120]

   Letters attesting to the offender’s otherwise good character were tendered. They were authored by her daughter, two members of her daughter’s partner’s family, a maternal aunt and a niece through the marriage to her second husband. In combination, they portrayed the offender as overcoming familial shortcomings in her upbringing and going on to being a devoted mother, supportive of her broader family and having a successful career in the employment of the suburban newspaper. The letters also relate how a succession of events took a toll on the offender’s mental health: the panic attacks from her increasing anxiety; her growing dependence on alcohol; the loss of her parents; and then the ray of hope that was the birth of her grandson. The major open-heart surgery on her grandson also took its toll, that surgery being the day before the offence. I note, in particular, the offender’s daughter’s commitment to helping her mother on her eventual release from prison.

8. [121]

   The proceedings against the offender commenced at a time that brought them within the ambit of the amendments to the CSP Act and cognate legislation, known as the Early Appropriate Guilty Pleas scheme. Pursuant to s 25D(2)(a) of the CSP Act, the offender is entitled to a discount of 25 per cent for the utilitarian value of her plea of guilty.

9. [122]

   The offender expressed remorse in her evidence at the sentence hearing, as well as in her interviews with the forensic psychiatrists.

10. [123]

    At the hearing, the offender acknowledged that the incident was not an accident and that it was not the deceased’s “fault”, despite the statements she made in her interview with police and to her family in the telephone calls from gaol extracted at [37]-[40] above. The offender stated that she previously described the incident as an accident because she “was in shock at the time … I didn’t accept it like I do now. I accept it”. She stated that she is now “Deeply and very, very sad … I am deeply sorry”.

11. [124]

    Section 21A(3)(i) provides that remorse is only a mitigating factor if there is evidence of the offender accepting responsibility for her actions. I accept that the offender is genuinely remorseful and that she now accepts responsibility for her actions, although for some time after her arrest she did not.

12. [125]

    Dr Furst made the following observations in his report:

13. [126]

    In evidence, the offender said that she receives medication for depression and anxiety and counselling, in the form of monthly sessions with a psychiatrist and fortnightly sessions with a psychologist. She is open to participating in courses in custody concerning alcohol addiction, but opportunities to do that in protection are limited. Some Corrective Services case notes concerning the offender were tendered. There was a reference in a note made on 25 November 2020 that the offender stated that she continues to experience panic attacks.

14. [127]

    Through much of her period on remand, the offender has not had the benefit of in-person visits, due to the restrictions introduced to control the Covid-19 pandemic. I accept that this would be particularly hard on the offender, given her ongoing depression and anxiety.

15. [128]

    The offender has been held in protective custody at her request, because of her fears for her safety following on the publicity surrounding the offence.

16. [129]

    She has a trusted position in the prison system; she is a representative of the Inmate Development Committee, which facilitates communication between prison management and prisoners.

17. [130]

    The only forensic psychiatric report tendered in the proceedings that addressed future dangerousness was that of Dr Furst. He listed the offender’s static and dynamic risk factors and her protective factors, and concluded:

18. [131]

    Consistently with his view of the risk of the offender re-offending, Dr Furst had a favourable view of the offender’s prospects of rehabilitation:

Submissions on behalf of the offender

1. [132]

   It was submitted that the psychiatric and psychological diagnoses of the offender made general deterrence less significant in the formulation of the sentence, for the reasons set out in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] and Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [53] to [54].

2. [133]

   Counsel for the offender submitted that the Court should find special circumstances pursuant to s 44(2) of the CSP Act, namely, that the statutory ratio of the non-parole period to the balance of term be varied, so that the offender would be subject to supervision for a longer period when she returns to the community. The basis of the application was the conditions of her custody, which include the anxiety that she suffers, and a submitted need for extended supervision.

3. [134]

   Counsel referred the Court to some past sentences for the offence of manslaughter by substantial impairment, and appropriately accepted that they are of limited assistance, since each case turns on its own features. As has been often observed, the protean character of the offence of manslaughter renders the sentencing range almost uniquely broad: see, for instance, Ward v The Queen (2006) 166 A Crim R 273; [2006] NSWCCA 321 at [70].

Consideration

1. [135]

   I have regard to the various purposes of sentencing that are set out at s 3A of the CSP Act, which are, in the context of this case: to denounce the offender’s criminal conduct in committing the offence; to adequately punish her and hold her accountable for her actions; to deter her and others from committing similar offences; to protect the community; and to recognise the harm done to the victim of the crime and the community. I earlier referred to my intention to take into account the impact of the offence on the deceased’s family in that regard. At the same time, a purpose is to promote the offender’s rehabilitation, which directly contributes to the protection of the community from further serious offending by the offender. Some of those purposes are modified in their application or weight by the common law, for example, whether the offender is an appropriate vehicle for deterring others: Director of Public Prosecutions (Cth) v De La Rosa at [177].

2. [136]

   The offence is a domestic violence offence, having regard to the definition of that term at ss 4 and 11(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Accordingly, pursuant to s 4A(1) of the CSP Act, the Court must impose either a sentence of full-time detention or a supervised order. Section 5(1) of the CSP Act obliges a court to not sentence an offender to a term of imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. I am satisfied that only a sentence of imprisonment is appropriate.

3. [137]

   The offender was aged 50 at the time of the offence and is now aged 53. She does not have a personal history of violent behaviour or a record of significant criminal offending, despite many years of excessive drinking of alcohol and arguments with the deceased. This history naturally prompts the question, why was it, that on this occasion the argument became so violent?

4. [138]

   There were unusual factors at play in the leadup to the offence. The serious operation on her grandson the previous day preoccupied her, as did her impending return visit to the hospital. As she told the Hotel staff shortly before the offence, at a time when there was no motive for her to lie, she had not slept or eaten. On being told of the graffiti in the men’s toilets, she appeared to the Hotel staff to be drawn and distressed. In view of her anxiety issues, it must have been particularly distressing for her to be told of the nature of the graffiti that her partner had placed all over the men’s toilet area, including her phone number, in the hotel in which they were regulars. That was compounded by the graffiti that the defendant had drawn or written with a felt tip pen over the offender’s father’s furniture, in their home. The offender’s moral culpability is reduced by these factors.

5. [139]

   Having left the Hotel and returned home, the offender confronted the deceased, which deteriorated into an argument that was so heated that the offender’s son had to tell the deceased to leave. At that point, in the space of what must have been no more than a few minutes, as a result of her various mental disorders that she had accumulated over her lifetime, her self-control became so impaired that she took a knife, gave chase, re-engaged the deceased in a brief verbal confrontation and then stabbed him once in the chest with the knife thereby intending to seriously injure him, but in fact causing his death.

6. [140]

   The exercise of sentencing an offender requires the court to determine to the relevant standards of proof, from the evidence before it, the facts that are relevant for the sentence. The objective seriousness of the offence is assessed, and relevant factors that are subjective in nature are identified. In those contexts, the various aggravating and mitigating factors that I have earlier referred to are assessed, and in the framework of the purposes of sentencing, as identified in the CSP Act and in the common law, all of those considerations are synthesised in order to fix the appropriate sentence.

7. [141]

   I find that there are special circumstances and I will vary the statutory ratio of the non-parole period to the balance of term. The special circumstances are the need for the offender when she returns to the community to apply and maintain her commitment to not return to excessively drinking alcohol and to continue to receive treatment for her anxiety, which I find to be factors that were central to her committing the offence. Her continuing anxiety renders her experience of prison harsher than it would be for others, which is a separate basis for finding special circumstances: Director of Public Prosecutions (Cth) v De La Rosa at [177].

Formulation of the sentence

1. [142]

   A head sentence of 10 years and 6 months is appropriate, from which the discount of 25 per cent for the offender’s plea of guilty is made, resulting in the head sentence being reduced to a period of 7 years and 10 months, rounded down to the nearest month. I fix a non-parole period of 5 years.

2. [143]

   The offender has been in custody since her arrest on the day of the offence, so the commencement of the sentence will be backdated to that date, being 10 October 2018.

Sentence

1. [144]

   Lisa Srsa, for the manslaughter of Glenn Pedgrift, I sentence you to a term of imprisonment for a period of 7 years and 10 months, commencing on 10 October 2018 and expiring on 9 August 2026. I impose a non-parole period of 5 years. You will become eligible for release to parole on 9 October 2023.