R v Yardley

1. [1]

   MEAGHER JA: I agree for the reasons given by Bellew J that the sentence imposed on the respondent was manifestly inadequate, that this Court should exercise the discretion to vary that sentence, and that the respondent should be sentenced as his Honour proposes. The respondent’s actions in unlawfully assaulting the deceased were purposeful, voluntary, unprovoked, involved a number of forceful and violent blows to his head and carried an appreciable risk of serious injury to the deceased. This happened in circumstances where the respondent was aware of the deceased’s frailty due to his medical condition, and the deceased’s reaction to the respondent’s arrival at his bedroom door had not caused the respondent any apprehension of harm and did not present any threat to his safety.

2. [2]

   BELLEW J: On 1 May 2019, two days after his listed trial date, David Alan Yardley (the respondent) pleaded guilty to an offence in the following terms:

3. [3]

   That offence was contrary to s 18(1)(b) of the Crimes Act 1900 (NSW) (the Act) and carried a maximum penalty of 25 years imprisonment. The Crown accepted the respondent's plea in full discharge of an indictment which included a second count of unlawful assault causing death, contrary to s 25A(1) of the Act.

4. [4]

   On 19 July 2019 the respondent was sentenced by Acting Judge Conlon SC to a non-parole period of 18 months imprisonment commencing on 19 July 2019 and expiring on 18 January 2021, with an additional term of 2 years imprisonment expiring on 18 January 2023.

5. [5]

   By notice dated 20 August 2019 the New South Wales Director of Public Prosecutions has brought an appeal to this Court against the sentence imposed upon the respondent, on the ground that such sentence is manifestly inadequate.

THE FACTS

1. [6]

   The respondent was the non-biological brother of John Raymond Yardley (the deceased). The respondent and the deceased grew up with their adoptive parents in a family home in southern Sydney. [1] On 12 September 2013 their father died, shortly after which the respondent returned to live in the family home with the deceased. Their adoptive father left the entirety of his estate to the deceased which comprised the home (the estimated value of which was then $650,000.00) and cash in the sum of approximately $78,000.00. [2]

2. [7]

   The respondent challenged the fact that no provision had been made for him under his adoptive father’s will. The dispute was ultimately settled by the execution of a Deed of Family Arrangement dated 14 April 2014, pursuant to which the deceased agreed to transfer 35% of the estate to the respondent, with the family home to be sold at the earliest possible date. The deceased further agreed to make an advance payment to the respondent of $10,000.00. [3]

3. [8]

   The deceased had an extensive medical history dating back many years which included:

4. [9]

   The Polycythaemia Rubra Vera caused the deceased to develop excessive red blood cells. In 2012 the condition became more aggressive and converted to myelofibrosis which, in turn, caused the deceased's bone marrow tissue to be gradually replaced with fibrosis scar-like material, which led to progressive bone marrow failure. The deceased's medical conditions forced him to cease full-time employment and he thereafter commenced to receive a disability support pension, although he remained independent in terms of daily living.

5. [10]

   In about August 2014 a real estate agent was engaged by the deceased to market the family home for sale. However, due to the deceased's health issues, the property was not actually placed on the market for sale until 3 March 2015 with an auction date of 26 March 2015. The house was sold at auction for $991,000, some $161,000.00 over the reserve price. [5]

6. [11]

   At about 10.00pm on 21 March 2015, five days prior to the auction the deceased was asleep in his bedroom in the family home. The respondent had been out, and upon returning to the premises he went to the deceased’s bedroom and woke him up. The deceased got out of bed and walked towards the bedroom door where the respondent berated the deceased, claiming that the delay in selling the family home had cost him $100,000. [6]

7. [12]

   The respondent then punched the deceased several times to the head, causing him to fall backwards onto the floor. Although he was bleeding profusely from a laceration to the bridge of his nose where he had been punched, the deceased managed to ring 000 and told the operator:

8. [13]

   When asked who had been responsible for the assault, the deceased said:

9. [14]

   The deceased also told the operator that he was bleeding from the forehead and the nose, that there was a fair bit of blood, and that he was lightheaded. [7]

10. [15]

    On arrival at the premises, paramedics observed that the respondent was agitated, and was pacing back and forth. The deceased was found to be conscious and breathing and said words to the effect:

11. [16]

    One of the paramedics who attended the scene recorded the following history provided by the deceased:

12. [17]

    Photographs taken at the time showed a significant amount of blood on the deceased, over the floor of his room, and on his bed. [10]

13. [18]

    The deceased was taken to Sutherland Hospital, where he was noted to have:

14. [19]

    A CT scan of the brain showed acute intracranial bleeding. [11] As a consequence, the deceased was transferred to the neurosurgical unit at St George Hospital. Although his condition was initially stable, it gradually deteriorated, with CT scans of the brain conducted on 24 March 2015 and 27 March 2015 demonstrating a progressively increasing subdural haematoma. [12] As a consequence, the deceased underwent a craniotomy and evacuation on 28 March 2015. There was an acute deterioration in his condition on 30 March 2015 and a CT scan of the brain taken on that day showed further bleeding. The deceased underwent a repeat craniotomy to evacuate the subdural haematoma but there was no neurological improvement and he subsequently died on 3 April 2017. [13]

15. [20]

    A post-mortem examination of the deceased conducted by Professor Duflou on 7 April 2017 revealed a large subdural haemorrhage within the skull. The cause of death was found to be complications of intracranial haemorrhage. In his report, Professor Duflou stated: [14]

16. [21]

    In the opinion of Professor Duflou, there was no doubt that the deceased had sustained blunt force injuries to the face in the form of a laceration to the bridge of the nose, nasal bone fractures, and extensive bruising and swelling. In his opinion, those injuries were entirely consistent with blows having been inflicted on the deceased by an assailant. Professor Duflou considered it likely that the deceased's blood thinning medication had significantly contributed to his death. [15]

17. [22]

    Dr Flecknoe-Brown, a consultant physician and clinical pathologist, expressed the view that the clinical events and subsequent post-mortem pathology findings confirmed that the underlying cause of the deceased's death was the subdural haemorrhage. [16]

18. [23]

    The respondent was arrested on the night of the assault and taken to Miranda Police Station where he participated in an interview with police. In the course of that interview, the respondent acknowledged that he knew that the deceased had a number of medical conditions, saying:

19. [24]

    In terms of the offending, the respondent was asked: [18]

20. [25]

    After canvassing other matters, the questioning of the respondent then returned to the circumstances of the offending: [19]

21. [26]

    The respondent was then asked: [20]

THE PERSONAL CIRCUMSTANCES OF THE RESPONDENT

1. [27]

   At the time of sentence the respondent was 54 years of age. He had what the sentencing judge described as a “limited criminal record", with convictions for possessing prohibited drugs in 1983 and 1985 (in respect of each of which he was fined) and a conviction for assault occasioning actual bodily harm in 1991 (in respect of which he received a deferred sentence).

2. [28]

   A report of Dr Patrick Sheehan was before the sentencing judge. Dr Sheehan stated [21] that the respondent had reported relatively persistent problems with substance abuse during his life, which had commenced with smoking cannabis from the age of 15 years and which had progressed to the use of methylamphetamine in 2016. [22] The respondent reported to Dr Sheehan [23] that he had never participated in any significant treatment intervention. Dr Sheehan expressed the view that the respondent would benefit from such intervention “of at least moderate intensity".

3. [29]

   The respondent reported an otherwise unremarkable health history to Dr Sheehan. He denied any childhood disorders or history of symptoms consistent with psychosis, and said that he had never been admitted to a psychiatric hospital. [24] The respondent described a pattern of low psychological resilience to stress, loss or conflict. He reported a strong grief reaction to the death of his adoptive mother in 2004, and said that although he had been prescribed anti-depressant medication at the time, he ceased using it because it had made him feel anxious. He similarly reported that although he had been prescribed various anti-depressant medications since 2010, he had never persisted with them due to unpleasant side-effects. [25] He denied that he had been particularly depressed at the time of the offending, but said that he had fallen into a deep depression in its aftermath, to the point where he reported serious suicidal ideation. [26]

4. [30]

   Dr Sheehan carried out an assessment of the respondent’s personality functioning and psychological adjustment and reported as follows: [27]

5. [31]

   Dr Sheehan concluded his report with the following: [28]

The disputed facts

1. [32]

   In the course of the sentence proceedings, two factual issues arose for the determination of the sentencing judge. The first of those issues stemmed from evidence given by Karen Strickland and Craig Ruddiman, both of whom were paramedics who had attended the scene. Ms Strickland gave evidence that when she arrived at the deceased's premises the respondent was agitated, and that when asked if he was the patient he had replied:

2. [33]

   Mr Ruddiman gave evidence that whilst Ms Strickland was treating the deceased, the respondent said:

3. [34]

   It was an issue on sentence as to whether or not the respondent had ever said that the deceased “deserved it”, in respect of which the sentencing judge made the following finding: [29]

4. [35]

   The second factual issue arose from the respondent’s assertion when interviewed that shortly prior to the assault the deceased had pushed or grabbed him, producing an apprehension of fear. In respect of this issue his Honour found: [30]

The objective seriousness of the offending

1. [36]

   In assessing the objective seriousness of the offending, his Honour made reference [31] to the fact that the circumstances which may give rise to an offence for manslaughter are many and varied, and that of all criminal offending, manslaughter presents the greatest variations of circumstances, and degrees of culpability. Having done so, his Honour said: [32]

2. [37]

   Having summarised the background to the offending, his Honour continued: [33]

The respondent's subjective case

1. [38]

   Having summarised the respondent's background as recorded by Dr Sheahan, his Honour said: [34]

2. [39]

   In terms of the respondent’s remorse, his Honour said: [35]

3. [40]

   Having applied a “discount of about 10%” to reflect the respondent's plea of guilty, [36] and having observed [37] that in considering the appropriate penalty "the starting point is that manslaughter involves the unlawful taking of a human life”, his Honour said: [38]

4. [41]

   His Honour then imposed the sentence to which I have previously referred.

Submissions of the Crown

1. [42]

   Although the Crown relied upon a single ground of appeal, namely that the sentence imposed was manifestly inadequate, it was submitted that his Honour's reasons for sentence were also infected by:

2. [43]

   Whilst the essence of the Crown’s principal submission was that there was an inconsistency between the characteristics of the offending which his Honour had identified and his ultimate conclusion as to objective seriousness, the Crown also submitted that, but for referring to the protean nature of this offence and the associated difficulties in assessing its objective criminality, the sentencing judge had failed to expose the reasoning for that conclusion. The Crown submitted that having noted the characteristics of the offending, his Honour had then moved directly to his conclusions, absent any expression or exposition of his reasoning process.

3. [44]

   It was pointed out that in written submissions provided to his Honour during the sentence proceedings, the Crown had submitted that the offending fell “well inside” the middle range of objective seriousness by reference to a series of identified factors. It was submitted that the sentencing judge had failed to properly address, and have regard to, such factors.

4. [45]

   The Crown further submitted that there were no mitigating factors which served to reduce the objective seriousness of the offending. In this regard, the Crown emphasised that the assault was not spontaneous, and was constituted by multiple blows. Whilst the Crown acknowledged that it had not been necessary for the sentencing judge to reach a conclusion about where the offending fell within a putative range, it was submitted that having done so, his Honour had fallen into error.

5. [46]

   The Crown also emphasised that the respondent's plea of guilty carried with it an acceptance of the fact that a reasonable person would have foreseen that repeatedly and forcefully punching a person with a compromised medical condition would necessarily expose that person to risk of serious injury. The Crown submitted that the evidence supported a conclusion that the respondent knew of the deceased's ongoing health issues, and that in circumstances where he must have known that the deceased would not be able to defend himself, he had nevertheless violently assaulted him.

6. [47]

   The Crown submitted that the erroneous conclusion reached by the sentencing judge as to the objective seriousness of the offending had led to the imposition of a manifestly inadequate sentence, particularly having regard to the fact that:

7. [48]

   The Crown further submitted that quite apart from the fact that the sentence imposed failed to reflect such factors, the sentence also failed to properly recognise:

8. [49]

   The Crown’s submissions then turned to the non-parole period. The Crown submitted, in effect, that the respondent’s subjective case was largely unremarkable. Whilst conceding that a finding of special circumstances was open, it was submitted that the favourable variation of the ratio between the head sentence and non-parole period which had been adopted by the sentencing judge following that finding was excessive, to the point of being wholly disproportionate. This, it was submitted, had resulted in the imposition of a non-parole period that failed to reflect the objective seriousness of the offending, as well as the need for general and specific deterrence. In this regard the Crown emphasised that the non-parole period imposed by the sentencing judge represented just 43% of the total term. The Crown further submitted that the fact that this was the respondent's first time in custody did not, at least of itself, justify a finding of special circumstances, and that in any event, such a factor substantially overlapped with other factors identified by Dr Sheehan.

9. [50]

   It was acknowledged that in the event this Court was satisfied that the sentence imposed was manifestly inadequate, it was incumbent upon the Crown to satisfy the Court that the residual discretion to decline to intervene and re-sentence the respondent should not be exercised. [39] In support of its submission that it had discharged that onus the Crown pointed out that:

10. [51]

    It should be noted that in the course of oral submissions the Crown took the Court to sentences imposed in other cases of manslaughter. [40] However, the Crown expressly acknowledged the limited utility of using such decisions for comparative purposes.

Submissions of the respondent

1. [52]

   Counsel for the respondent emphasised the principles governing Crown appeals against sentence. He also emphasised that the assessment of objective seriousness of an offence involves a discretionary process calling for a value judgment. Counsel submitted that such an assessment, particularly in a case of manslaughter, did not readily admit of precision, and that in particular, fine gradations in the assessment of objective seriousness are not a basis for asserting error.

2. [53]

   Counsel acknowledged that the sentence imposed was (as he described it) “lenient” and that the non-parole period was (again as he described it) “markedly so”. However, counsel emphasised that this Court’s task was to determine whether the sentence was so far outside the range of the proper exercise of the sentencing discretion that it should be regarded as manifestly inadequate. Counsel stressed the experience of the sentencing judge, and submitted that his Honour’s assessment of objective seriousness was open having regard to all of the circumstances of the case. It was specifically submitted that the sentencing judge was not obliged to provide elaborate reasons for his conclusions as to objective seriousness [41] and this Court would not conclude that his Honour was in error in that respect because (inter alia):

3. [54]

   Counsel for the respondent submitted that specific deterrence had little part to play in determining an appropriate sentence, and that although general deterrence was a relevant consideration, the circumstances of this case did not make the respondent a particularly good vehicle for any wider community message. In advancing that submission, counsel sought to distinguish the present case from similar offending committed in the context of domestic violence.

4. [55]

   Counsel for the respondent further submitted that the extent of any adjustment to the statutory ratio between the head sentence and the non-parole period was also a discretionary matter for the sentencing judge, and was subject only to the constraint that the non-parole period appropriately reflected the criminality involved in the offending. Counsel emphasised that there was no general rule or formula for the determination of an appropriate ratio once a finding of special circumstances had been made, and that the variation adopted by the sentencing judge in the present case was open as a matter of discretion, taking into account both objective and subjective considerations.

5. [56]

   Ultimately, counsel for the respondent submitted that this Court should bear firmly in mind that determining an appropriate sentence in cases of manslaughter is notoriously difficult. It was submitted that this Court should reject the proposition that the sentence imposed was manifestly inadequate because:

6. [57]

   In terms of the residual discretion, counsel for the respondent submitted that offences of manslaughter were invariably committed in the context of facts and circumstances which were unique to the particular case. It was submitted that the present case was, as the sentencing judge had specifically said, no exception, and that in these circumstances any judgment of this Court would be of limited precedential value. It was submitted that no principles for guidance of sentencing courts had been identified by the Crown, and that in circumstances where the correct sentencing principles were applied by the sentencing judge, little further guidance was called for. It was submitted that in these circumstances, the Crown had failed to discharge the onus of establishing that this Court should decline to exercise the discretion not to intervene.

7. [58]

   Finally, counsel for the respondent also took the Court to sentences imposed in other cases of manslaughter, [42] as well as to sentencing statistics. However, like the Crown, counsel also acknowledged the limited utility of such material.

CONSIDERATION

1. [59]

   In light of the assertion of manifest adequacy, the Crown must establish that the sentence imposed was unreasonable or plainly unjust, bearing in mind firstly that there is no single correct sentence, and secondly that a sentencing judge is to be allowed as much flexibility in sentencing as is consonant with the application of proper principle, and consistency of approach. [43] The principles governing Crown appeals were set out in R v Barker [44] by Hoeben CJ at CL (with whom Bathurst CJ and Price J agreed):

2. [60]

   These principles have since been restated with approval. [45] They form the basis of this Court’s approach in the present case, accepting that manifest inadequacy of sentence is a conclusion which does not depend upon attribution of identified specific error in the reasoning of a sentencing judge. [46]

3. [61]

   In my view, for the reasons that follow, the Crown's complaint of manifest inadequacy has been made out.

4. [62]

   To begin with, the sentencing judge found [47] that the offending was characterised by the fact that the respondent had:

5. [63]

   There is, in my view, a significant displacement between those characteristics of the offending which his Honour identified, and the conclusion which his Honour ultimately reached as to objective seriousness. The identified characteristics bespeak offending of substantially greater gravity than that which falls “below mid-range [and] indeed more towards the lower end of the range". Further in my view, his Honour’s conclusion in that respect does not sit comfortably with his express recognition of the fact [48] that “the starting point is that manslaughter involves the unlawful taking of a human life".

6. [64]

   I also accept the Crown’s submission that the remarks of the sentencing judge are bereft of any exposition of the reasoning process supporting the conclusion as to the objective seriousness of the offending. Whilst I accept that this Court has observed that such reasons need not be elaborate, it has also observed that there is a need for such reasons to be sufficient to enable the parties, and this Court on appeal, to understand the basis for the conclusions reached. [49] The reasons given by the sentencing judge in the present case present some difficulty in that respect. The characteristics of the offending were identified, and a conclusion expressed, without any exposition of reasoning in between.

7. [65]

   The assessment of the objective seriousness of an offence is an essential element of the sentencing process. [50] Given that the offence was not one which carried a standard non-parole period, it was not necessary for his Honour, for the purpose of assessing objective seriousness, to determine where the offending fell within a putative range. [51] However, having taken that course, his Honour fell into error for the reasons that I have set out, with the result that a manifestly inadequate sentence was imposed.

8. [66]

   Further, having made a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act), his Honour varied the statutory ratio and imposed a non-parole period which was only 43% of the overall term. In R v GWM [52] Johnson J (with whom McClellan CJ at CL and I agreed) made the following observations regarding the determination of a non-parole period following a finding of special circumstances: [53]

9. [67]

   The adjustment of the statutory ratio following a finding of special circumstances cannot result in the imposition of a non-parole period that fails to reflect the seriousness of the offending, and the need for general and specific deterrence. [54] In my view, that was the result in the present case. Whilst specific deterrence may have been of limited significance, general deterrence remained an important consideration. I am unable to accept the submission of counsel for the respondent that because the offending occurred in the context of a family dispute between two brothers, general deterrence had little role to play. The offending was an instance of domestic violence. The fact that it was between siblings, as opposed to partners, does not change that context, nor does it mean that the recognised importance of general deterrence of violence in a domestic setting is somehow diminished. [55]

10. [68]

    Further, the bases on which the finding of special circumstances was made were, in my view, somewhat nebulous. The first basis was what his Honour referred to as “the final recommendation of the psychologist". Dr Sheehan’s final recommendation was that once the respondent's condition had stabilised, he should undergo relevant institutional programs including EQUIPS and Real Understanding Self Help. The second basis, was the fact that the respondent was 54 years of age and would be serving a custodial sentence for the first time. In my view, those matters, whether taken alone or in combination, did not justify a finding of special circumstances at all, let alone one which resulted in an adjustment to the statutory ratio of the magnitude of that which was adopted.

11. [69]

    In this respect, two particular matters should be noted. Firstly, this Court has expressed considerable reservations about whether the fact that an offender will find himself or herself in custody for the first time is capable of constituting special circumstances. [56] Secondly, even if it is accepted that this factor could, when combined with other factors, justify a finding of special circumstances, the only other relevant circumstance in the present case was the recommendation of Dr Sheehan that once the respondent's condition had stabilised, he should undertake certain courses. That recommendation said absolutely nothing about whether the respondent would benefit from a longer period on parole once released which is, after all, a primary focus of a consideration of whether special circumstances are made out. [57]

THE RESIDUAL DISCRETION

1. [70]

   The manifest inadequacy of the sentence having been established, the Crown bears the onus of establishing that the discretion conferred by s 5D(1) of the Criminal Appeal Act 1912 (NSW) should be exercised to vary the sentence imposed. [58] In the course of oral submissions, counsel for the respondent emphasised that the primary purpose of an appeal against sentence by the Crown is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons, and that such purpose does not extend to the general correction of errors made by sentencing judges. [59] The essence of the submission advanced by counsel for the respondent was that the Crown had failed in the present case to establish that the appeal was brought for such a purpose, and that given the circumstances surrounding the respondent’s offending this Court would decline to intervene.

2. [71]

   I am unable to accept that submission. The protean nature of the offence of manslaughter is such that it necessarily covers a wide range of circumstances which might often be regarded, of themselves, as unique. If that were a basis on which to decline to intervene, it would follow that this Court would decline to intervene in the majority of these types of cases that come before it. That, in my view, would reflect an incorrect application of principle. Further, the respondent’s offending was committed in the context of a domestic relationship. In my view, there is a strong need for this Court to provide guidance and governance for the sentencing of persons who commit offences such as this in those circumstances.

3. [72]

   It follows that the Crown has discharged its onus. This Court should intervene and vary the sentence which was imposed.

RE-SENTENCE

1. [73]

   The facts and circumstances of the offending have already been set out at length. In addition to the characteristics of the offending which were identified by his Honour, four further factors should be noted.

2. [74]

   Firstly, the violence perpetrated by the respondent on the deceased was gratuitous, cowardly and unprovoked, and was constituted by repeated blows to the head, in circumstances where the respondent was obviously aware of the deceased’s physical fragility due to illness.

3. [75]

   Secondly, whilst I accept that the assault itself was not pre-meditated, the respondent’s decision to go to the deceased's room, which necessarily forms part of the facts and circumstances of the offending, was clearly not a spontaneous one.

4. [76]

   Thirdly, even though the respondent may not (initially at least) have been aware of the ultimate gravity of what he had done, it must have been immediately clear to him that his actions had resulted in the deceased being severely injured. The photographs of the deceased and his bedroom are inconsistent with any other conclusion. Notwithstanding, the respondent showed no concern whatsoever for the deceased's well-being. On the contrary, he left it to the deceased to call the ambulance, told the paramedics upon arrival that the deceased had “deserved it", and spent a considerable time during the course of his interview with police attempting to blame the deceased for what had occurred.

5. [77]

   Fourthly, the offending was aggravated by the fact that it occurred in the deceased's home, a place where he was entitled to feel safe. This is so, notwithstanding the fact that the respondent was entitled to be present in the home given that he also lived there. [60]

6. [78]

   The respondent’s conduct was constituted, quite simply, by wanton and repeated acts of violence perpetrated on someone who was essentially defenceless and who, to the respondent’s knowledge, was in a fragile medical state. The deceased did nothing whatsoever which caused the respondent to feel fearful at all. The utter disregard with which the respondent treated the deceased is best gauged by his assertion that the deceased had “deserved it”, a comment made when it must have been apparent to the respondent that the deceased was severely injured. The characteristics which I have identified reflect offending of considerable seriousness, and of far greater gravity than the sentencing judge found.

7. [79]

   The respondent did not give evidence on sentence. In the course of his interview with police, as well as in the course of his assessment by Dr Sheahan, [61] he continued to assert that the deceased had been the aggressor, a proposition which the sentencing judge rejected. In these respects, Dr Sheehan reported: [62]

8. [80]

   Section 21A(3)(i) of the Sentencing Act provides that remorse shown by an offender is a mitigating factor to be taken into account in determining sentence, but only if:

9. [81]

   The sentencing judge concluded [63] that there “may be some merit" in the submission which had been made by the Crown that there was insufficient evidence of genuine remorse for the purposes of section 21A(3)(i). However, having made that observation his Honour concluded that what the respondent had said to Dr Sheehan was “some evidence of his contrition".

10. [82]

    I respectfully disagree with that conclusion. Regret for offending on the one hand, and genuine remorse for offending on the other, are two completely different concepts. The primary distinction between the two is that remorse involves accepting responsibility. What the respondent said to Dr Sheehan was an expression of regret, not an expression of genuine remorse. It did not, in my view, amount to evidence that the respondent had accepted any responsibility for his actions at all. Whilst giving sworn evidence in sentence proceedings is not a prerequisite to a finding that an offender is genuinely remorseful, [64] the fact that the respondent chose not to give evidence necessarily means that this Court may give less weight to his assertions of remorse to Dr Sheehan. [65] In all of the circumstances I am not satisfied on the balance of probabilities that the respondent is genuinely remorseful for his offending. I am fortified in that view by the fact that the respondent said that the deceased had “deserved it” in circumstances where he must have been aware of the fact that his actions had caused the respondent significant injury. Such a comment is antithetical to genuine remorse, and acceptance of responsibility for one’s actions. I am further fortified in that view by the respondent’s repeated attempts to ascribe blame to the deceased in the course of his interview with police.

11. [83]

    An assessment of the respondent’s prospects of rehabilitation is difficult in the absence of evidence specifically addressing that question. However, the respondent has a limited criminal history and there is an inference available from the report of Dr Sheehan that he may be assisted to some degree by undertaking one or more specified courses. In these circumstances, I would consider the respondent’s prospects of rehabilitation to be more favourable than not, although that is necessarily a guarded assessment. Whilst I accept that specific deterrence has a limited role to play in determining an appropriate sentence, that is not the position in terms of general deterrence. As I have already observed, this offending was an episode of domestic violence. Any sentence imposed must operate as a deterrent to those who might otherwise be minded to offend in this way.

12. [84]

    I have previously noted the timing of the respondent's plea of guilty. A discount of 10% should be applied to reflect the utilitarian value of that plea.

13. [85]

    Finally, I turn to a consideration of special circumstances. The respondent’s subjective case is essentially confined to the matters set out in the report of Dr Sheehan who assessed what he described as “mild elevations" on various personality scales. [66] Dr Sheehan also concluded that “the overall constellation of scores is consistent with (the respondent’s) presentation, suggesting compromised personality functioning, mood dysregulation, substance abuse and high levels of current stress". [67]

14. [86]

    However, it is important to emphasise that Dr Sheehan also recorded that the respondent’s testing revealed “a tendency towards self-debasement that may have resulted in over-inflation of his disorders". It was these disorders which led him to recommend that the respondent undertake institutional programs [68] and which, in turn, formed the basis of the conclusion reached by the sentencing judge that special circumstances had been made out.

15. [87]

    Before this Court, the Crown conceded that a finding of special circumstances which was made by the sentencing judge was open. At the same time, the Crown described that finding (as distinct from the variation in the ratio which was applied as a result of it) as “generous". In my view, there was a degree of inconsistency in the position adopted by the Crown in respect of this issue. The evidence either supported a finding of special circumstances, or it did not.

16. [88]

    The Crown's concession does not bind this Court. In my view, the evidence does not support a finding of special circumstances. For the reasons I have already expressed, the respondent’s age, and the fact that it his first time in custody, do not warrant such a finding, and nothing said by Dr Sheehan squarely addressed the issue of whether the respondent would benefit from a longer period on parole. This is not a case in which the circumstances are sufficiently special to justify a variation in the statutory ratio between the non-parole period and the total sentence. [69]

ORDERS

1. [89]

   I propose the following orders:

   1. (1)

      The Crown appeal is allowed.

   2. (2)

      The sentence imposed by Acting Judge Conlon SC in the District Court of New South Wales is quashed.

   3. (3)

      In lieu thereof, the respondent is sentenced to a non-parole period of 4 years and 9 months imprisonment commencing on 19 July 2019 and expiring on 18 April 2024.

   4. (4)

      An additional term of 1 year and 7 months imprisonment is imposed commencing on 19 April 2024 and expiring on 18 November 2025.

2. [90]

   LONERGAN J: I have had the benefit of reading the judgment of Bellew J in draft, and the additional remarks of Meagher JA.

3. [91]

   I agree with Bellew J, for the reasons stated by him particularly at [71], that this Court should not decline to intervene.

4. [92]

   I agree with the additional remarks of Meagher JA.

5. [93]

   I agree with the sentence and the orders proposed by Bellew J.