Supreme Court New South Wales

• Medium Neutral Citation: R v Winefield [2011] NSWSC 337
• Hearing dates: 19 April 2011
• Decision date: 20 April 2011
• Jurisdiction: Common Law - Criminal
• Before: Fullerton J

Decision

Imprisonment for 10 years comprised of a non-parole period of 7 years and 6 months to date from 14 February 2009 and to expire on 13 August 2016, with a balance of term of 2 years and 6 months expiring on 13 February 2019.

• Catchwords: CRIMINAL LAW - sentence - manslaughter by unlawful and dangerous act - offender armed with a knife - offence committed in the presence of children - violence by road user
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999
• Cases Cited: Alvares v R [2011] NSWCCA 33; Butters v R [2010] NSWCCA 1; Director of Public Prosecutions v Lothian [2006] VSCA 217; MAH v R [2006] NSWCCA 226; Police v Kennedy [2005] SASC 173; R v De Simoni [1981] HCA 31; 147 CLR 383; R v Forbes [2005] NSWCCA 377; 160 A Crim R 1; R v Hamilton; R v Sandilands [2007] NSWSC 452; R v Lavender [2005] HCA 37; 222 CLR 67; R v MAK [2006] NSWCCA 381; 167 A Crim R 159; R v Olbrich [1999] HCA 54; 199 CLR 270; R v Trevenna [2004] NSWCCA 43; 149 A Crim R 505; R v Ward [2010] NSWSC 304; R v West [2011] NSWCCA 91
• Category: Sentence
• Parties: The Crown; Mitchell Anthony Winefield (Offender)
• Representation: Counsel: P Barnett SC (Crown); P Young SC (Offender); Solicitors: Director of Public Prosecutions (Crown); Legal Aid Commission (Offender)
• File Number(s): 2009/66358

REMARKS ON SENTENCE

1 HER HONOUR: On 23 February 2011 the Crown presented an indictment charging the offender, Mitchell Anthony Winefield, with the murder of Caleb Jarrett at Nambucca Heads on 14 February 2009. On 16 March 2011 the jury acquitted him of murder and convicted him of manslaughter. The maximum sentence for manslaughter is 25 years imprisonment.

2 It was not in dispute that Caleb died from a penetrating stab wound to his chest which entered the chest cavity before passing through the pericardium into the left ventricle of the heart. Three further stab wounds were identified towards the centre of his chest, none of which penetrated beyond a few centimetres. He also sustained a stab wound to the upper right side of the abdomen which entered the abdominal cavity and a complex of slash wounds to the left side of the abdomen, his upper right thigh, lower left thigh and groin, each of which penetrated deeply into the subcutaneous tissue. Professor Lyons, forensic pathologist, was unable to appoint the order in which the wounds were sustained but gave unchallenged evidence that only the wound to the chest was fatal.

3 It was not is dispute at the trial that Caleb sustained each of the wounds in the course of a fight with the offender which erupted shortly before midnight when the two men confronted each other on the forecourt/driveway area of a car repair workshop close to where the offender then lived. What was in dispute was why the fight broke out, in the sense of whether it was Caleb or the offender who was the aggressor, and whether it was Caleb or the offender who was armed with the knife at that time. These questions were addressed by a large volume of evidence from a number of eyewitnesses. They gave evidence in direct conflict with the offender's evidence.

4 For reasons which I will discuss presently, the jury's consideration of this factual dispute was essential to their consideration of whether the Crown had proved that the offender murdered Caleb, although not necessarily determinative of it. It was also essential to their consideration of the alternate bases upon which they were invited to return a verdict of guilty to manslaughter. The same factual dispute has resonance for sentencing purposes.

5 The factual findings it is necessary for me to make must be consistent with the verdict of the jury. In making my own determination as to which of the alternate bases for manslaughter left to the jury is the appropriate basis upon which to sentence the offender, I am conscious that any findings of fact adverse to him must be proved beyond reasonable doubt. Matters relied upon in his favour, or otherwise in mitigation of sentence, may be proved on the balance of probabilities (see R v Olbrich [1999] HCA 54; 199 CLR 270).

The crown case at trial

6 It was the Crown case that the offender left his home shortly before midnight and got into his car in a state of extreme agitation after arguing with his girlfriend. They had been drinking at a local hotel for some hours that evening and he had consumed several schooners of beer. En route from the hotel and once inside their house an argument broke out which intensified and culminated in him "hurting her in the bedroom". The jury were not informed about the type of physical hurt he inflicted. It does not warrant any elaboration in these sentencing remarks since it cannot operate to aggravate the offending for which he is to be sentenced (see R v De Simoni [1981] HCA 31; 147 CLR 383).

7 Evidence of the amount of alcohol the offender consumed at the hotel and the fight with his girlfriend which culminated in him inflicting harm upon her was led at trial (without objection) as relevant to his state of mind when he almost collided with Caleb who was walking across the driveway of the offender's house some distance ahead of a group of his friends who were spread out in a loose group along the footpath behind him. They were making their way back up to town after a party at a friend's home in a neighbouring street did not eventuate. The evidence established that Caleb was walking a short distance ahead of the next boy because he needed to urinate when the offender came out of the driveway.

8 The offender's mood or state of mind before he confronted Caleb is also relevant to sentence for the related purpose of considering whether his conduct on 14 February 2009 should be viewed as impulsive and/or alcohol fuelled and not otherwise reflecting an entrenched predisposition to inflicting violence on others. I will consider that question later in these remarks.

9 The young friends with whom Caleb was in company on 14 February 2009 were aged between 13 and 18. Only Caleb and Victor Buchanan were aged 18, the remaining boys being younger by a couple of years with the youngest being 13. Caleb was a large framed young man 184 cm tall and weighing 149 kg. Each of the boys lived in Nambucca Heads with their family.

10 None of the boys that Caleb was with had consumed any (or very much) of the bourbon and Coca Cola that had been purchased earlier that evening. Caleb on the other hand was well affected by alcohol, as revealed by post mortem toxicology, when the offender and he came into contact with each other. The boys he was with over some hours gave evidence that he was laughing and in good humour and that he was not unsteady on his feet or irascible.

11 It was the Crown case at trial that after narrowly missing Caleb the offender drove a short distance beyond his driveway onto the road before braking sharply and reversing back under speed. On the Crown case he then got out of the car and flicked open a spring loaded knife as he approached Caleb who had by that time walked on.

12 The Crown case was that when the offender reached Caleb he threw the first punch with the hand that was holding the knife and struck Caleb in the chest causing the wound from which he later died. The Crown submitted that this act was at least accompanied by an intention to inflict grievous bodily harm. The Crown case was that the two men then fought to the ground, and then wrestled on the ground in the process of which the other knife wounds were inflicted - perhaps initially as the offender sought to resist Caleb's greater height and weight and then as they rolled around on the ground. Two or perhaps three of Caleb's friends came to his aid at this time. They kicked the offender whilst he was on the ground before they desisted and walked off allowing him to get up and move off in the opposite direction back to his car.

13 The Crown submitted that the offender's failure to seek medical attention for the laceration to his hand, or to ring the police and complain at being viciously assaulted, was consistent with him being the aggressor who was well aware that he had succeeded in stabbing or slashing Caleb with the knife as revealed by his being heard by all of the boys to boast, "I got you, you black c---s" as he drove away in his car.

14 The Crown submitted that the offender picked the knife up off the ground and had it in his pocket when he was arrested because it was his knife. The evidence of his girlfriend was powerful and unchallenged evidence of him being a collector of knives and having a knife of the kind used in the fight in his collection. This was in contrast with the evidence of Caleb's friends and his mother that he, Caleb, did not own a knife of any kind and was not seen with a knife on the night he died.

The offender's evidence at trial

15 It is necessary to review the offender's evidence in a summary way so as to put into context the reasons why I am satisfied, consistent with the jury verdict, that the offender (and not Caleb) was armed with the knife when the fight broke out, and that the offender (and not Caleb) wielded the knife throughout the fight such as to deliberately cause the fatal wound (and each of the other wounds) that were revealed on autopsy.

16 The offender gave evidence that he thought he may have accidentally hit Caleb as he was manoeuvring his car from alongside the house intending to park it at the front of his house after he returned from the hotel and that he only stopped the car and approached him out of concern for him. He said that by this time the argument with his girlfriend had resolved and that he was calm and composed.

17 He said that as he approached, Caleb struck out at him, a strike which he blocked with the back of his hand at which time the knife (presumably in Caleb's hand) fell to the ground. He asked the jury to infer that this was how he sustained the laceration across the back of the fingers on his left hand. He said that Caleb then immediately proceeded to rein blows to his head and back whilst he was crouched over in a defensive position, and that it was at this time that he grabbed the knife off the ground to avoid it being used against him. He said that he was then pushed to the ground and Caleb either jumped or fell on top of him, effectively pinning him to the ground, at which time he was kicked in the head by other boys in Caleb's group. He said although he had the knife in his hand at this time, and that he used the hand that held the knife to push up at Caleb's upper body in an effort to push him off, he did not intentionally use the knife to stab or slash at Caleb at any time despite fearing for his life. He gave no evidence to account for how any of Caleb's wounds were actually inflicted. Although he said he had consumed a considerable amount of alcohol in the hours before the fight he did not claim that this affected his judgment or his capacity in any way.

18 The offender did not dispute that he was overwhelmed in the fight. On his account, however, this was not as a result of Caleb's resistance to the knife attack that he had launched or because Caleb's friends came to help him but because of the level of violence he was subjected to when he was attacked by the group. He said he was left to pick himself off the ground when the group walked away. He said they said nothing, and he said nothing as they went their separate ways. He said that it was while looking for his keys that he chanced upon the knife that he must have dropped at some stage whilst he was on the ground. He said he picked it up and put it in his pocket. He said that although he was conscious of a laceration to his left hand after the fight stopped he was not aware that he had inflicted any wounds on Caleb (much less a fatal wound) until he was arrested by police some time later when he was parked in a neighbouring street after unsuccessfully seeking medical treatment for his hand.

19 In effect, the offender's case was that after he gained control of the knife he accidentally inflicted the fatal wound as he struggled to defend himself against Caleb's unprovoked and violent attack and that in those circumstances he was entitled to be acquitted of both murder and manslaughter.

The instructions to the jury

20 The jury were instructed that if they considered that the offender's evidence was not a reasonably possible explanation for how Caleb sustained the fatal wound to his chest (being one wound within the complex of wounds to his middle and upper body) that is, they were satisfied beyond reasonable doubt that the fatal wound was the result of his voluntary act of stabbing Caleb, then it was still open to them to acquit him of murder and to return a verdict of guilty to manslaughter on alternate bases.

21 The first basis was that the Crown could not exclude the reasonable possibility that when he intentionally stabbed Caleb in the chest intending to either kill him or inflict grievous bodily harm he was defending himself against the risk of being seriously hurt but that what he did exceeded what was reasonably necessary to defend himself. The alternate basis addressed by both counsel was that in the event that the jury were not satisfied that the offender intended to either kill Caleb or inflict grievous bodily harm when he stabbed him the chest (whether because of the amount of alcohol he had consumed or because of the dynamics of the fight and because the evidence of the eyewitnesses left room for doubt as to when and how the fatal wound was inflicted) but they were satisfied that he acted unlawfully (that is, not in self-defence) and they were satisfied it was dangerous for him to use the knife to stab at or in the direction of Caleb as he approached him and when they were engaged in the fight, then manslaughter was an available verdict.

22 It was accepted by Mr Young SC, who appeared for the offender at trial and on sentence, that if the jury were satisfied that the offender was armed with the knife as he approached Caleb and that the fight broke out because, as the Crown contended, he struck the first blow and inflicted the fatal wound at that time, then self-defence was not available to be considered by the jury either on the murder charge or the alternate charge of manslaughter by an unlawful and dangerous act. That was a concession properly made at trial and the jury were instructed accordingly.

23 I directed the jury that manslaughter was also an available verdict in a scenario not addressed by either counsel. If they were satisfied that the offender was in possession of the knife and was the aggressor, but there was a reasonable possibility that he did not attack Caleb with the knife immediately upon confronting him (even if he did use it threateningly or to remonstrate with Caleb at that time) and that once the fight started he was actually in fear of being seriously hurt then they could consider self-defence and if they accepted the reasonable possibility that Caleb was fatally stabbed in the process of the offender defending himself in the fight but without intending to kill him or inflict grievous bodily harm but they were satisfied that his use of the knife was dangerous and exceeded what was reasonably necessary in the circumstances then manslaughter was also an available verdict.

The factual findings for sentencing purposes

24 On any view of the evidence the fight in which Caleb died was violent and dynamic lasting only minutes before the offender was overwhelmed by Caleb and those of his friends that ultimately came to his assistance and whose intervention effectively stopped the fight. The only eyewitnesses to the fight and what preceded it were Caleb's young friends. Despite a lack of perfect coincidence between their evidence as to who did what in the fight and in what sequence, (a divergence which is entirely understandable given their age and the different lines of vision over which they made their observations in the relatively poor light conditions and the shock of knowing at the time they gave their statements to police that Caleb had been very seriously hurt), I regard each of them as truthful witnesses who made every effort to describe what they saw in their own words and that they did so without embellishment.

25 What emerged from their evidence was a consistent picture of the offender driving from his home late at night under speed, braking and reversing, also under speed, before aggressively approaching Caleb with an open bladed knife. What their evidence also established was that thereafter there was an exchange of blows whilst the two men were standing (thereby, as I see it, accounting for the multiple stab wounds to Caleb's chest and abdomen although I cannot say which of the wounds was sustained first) and then the two men wrestling to the ground and then wrestling on the ground (thereby, again as I see it, accounting for the slashing injuries to Caleb's groin, thigh and knee). The probabilities favour the injury to the offender's left fingers being sustained in that process or perhaps as the knife fell from his hand. In either event it is not submitted that his injury has any relevance on sentence.

26 What also emerges from the evidence of the eyewitnesses (and about which I have no doubt) is that the offender made racial taunts in a boastful and belligerent way when the fight was over and as Caleb and his friends moved on. Whatever else his language might reveal about his mood at the time, I accept that he would not have been aware that Caleb was fatally injured at that time if for no other reason than Caleb managed to get up and walk off, only falling to the ground after walking some distance up the road. I am satisfied, however, both from what the offender said and the depth and spread of the wounds Caleb in fact suffered that he was aware that Caleb had been stabbed.

27 In short, I reject the offender's evidence where it is in conflict with the evidence of the eyewitnesses. I do not regard him as a witness of truth and I am unable, for that reason, to give any weight to his claim to have acted in defence of himself at any time. I am satisfied that he stabbed and slashed at Caleb with a knife in pursuit of winning a fight he started.

28 I am satisfied that the knife was in the offender's possession, being one of a collection of knives in his home, and that he flicked it open as he got out of his car to remonstrate with the boy who had hit his car and shouted at him. I am satisfied that at that time he believed (wrongly as it turned out) that the boy was on his own and therefore someone he could remonstrate with at knife point and bully into submission. Although I cannot be satisfied that this conduct was racially motivated (since I cannot be satisfied on the evidence that he knew Caleb was Aboriginal when he almost collided with him), I am satisfied that as he approached he was aware of Caleb's racial identity and that he was a teenager despite his height and size. Because I am left in doubt as to whether the use of the knife thereafter was racially motivated, despite some suspicions I have that it might be the case, the aggravating factor in s 21A(2)(h) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act") is not enlivened. The Crown did not submit otherwise.

29 Caleb's consumption of alcohol may explain why he struck the bonnet of the offender's car with his fist and why he was heard by his friends to yell out angrily at that time. I do not, however, regard his intoxication as contributing to the onset of the fight or as having any material bearing at all on how he sustained any of his wounds including the fatal wound. After the speeding car all but missed him, he walked on rather than approach the driver of the car. Moreover, when the offender approached him from behind Caleb did nothing that displayed any aggression at all other than to turn and take up an understandably defensive stance having been warned by the boy who was closest to him that the man had a knife. I am satisfied that whatever was said, if anything, at this time it was the offender who struck the first blow. Consistent with the verdict of the jury I am not however able to be satisfied beyond reasonable doubt that the first blow was the fatal blow.

30 Having made these findings of fact, sentence will be imposed on the basis that Caleb was killed by the offender's unlawful and dangerous act in arming himself with a spring loaded flick knife and then using it in a fight which he instigated. He will not be sentenced on the basis that he intended any particular type of harm when he used the knife in this way but that a reasonable person in his position would have realised that Caleb was exposed to a significant risk of serious injury. While it appears that the offender was well affected by alcohol which, together with the fight with his girlfriend, may have inflamed his temper when his car was punched and when the person he almost hit yelled abuse at him, I am satisfied that he was well aware as he approached Caleb and during the fight that broke out that there was a real risk of Caleb suffering serious injury; first, because he was armed with the knife, and then because he was prepared to use it. I regard his conduct as both unlawful and dangerous in the extreme. As I have been at pains to make clear, I reject the offender's evidence that he acted in self-defence which, as Adams J said in R v Hamilton; R v Sandilands [2007] NSWSC 452 at [32], can operate in an appropriate case to place manslaughter by an unlawful and dangerous act in the lower range of objective seriousness.

31 I repeat that while the offender's consumption of alcohol may well explain his level of aggression and his impulse to violence I do not consider it operates to mitigate the objective seriousness of his offending which I regard at the upper end of the range for manslaughter and warranting the imposition of a lengthy sentence.

The victim impact statements

32 I received victim impact statements from six of the young men who were eyewitnesses to the incident. Only one of the boys did not provide a statement. He was not available to give evidence at the trial and his evidence from an earlier trial was received without objection. The statements from the young men were also tendered in the proceedings as relevant on an additional basis under s 21A of the Sentencing Act .

33 I also received statements from Caleb's mother, his grandmother, his grandfather and his brother. Caleb's mother and his grandmother read their statements in open court. The statements from his grandfather and his brother were read by a family friend on their behalf.

34 I was deeply moved by their courage in speaking publically of their pain and their sadness at the loss of a young man of spirit and promise and of whom they feel justly proud. The tragic circumstances in which their son, grandson and brother died has left a permanent scar on the family, the ongoing effects of which they suffer in different ways but with a shared level of intensity. I can only hope that these proceedings bring some sense of closure and that they will each resume their lives with the memory of how Caleb lived and not how he died. While Caleb's family may expect to see their loss reflected in the sentence to be imposed, that is not the object of sentencing in our system of justice. No sentence of imprisonment, whatever its length, can compensate for the loss of a loved one. The law values life and treats the taking of a life as the gravest of crimes irrespective of who the deceased was and whatever others might think of him or her. The offence of manslaughter cannot be made more serious because the deceased was a good person and because of the pain that others feel at their loss however intense and real that pain is. I do, however, take the statements of the family into account in the way permitted by law (see MAH v R [2006] NSWCCA 226). I extend my sincere and deepest sympathies to them. I acknowledge the loss of this young man to both the indigenous and non indigenous communities of which he was a valued member.

Sentencing for manslaughter

35 It is well recognised that the offence of manslaughter produces a great variety of circumstances which impact on an offender's culpability for the death of another person and attracting, for that reason, a wide range of sentences (see R v Lavender [2005] HCA 37; 222 CLR 67 per Gleeson CJ, McHugh, Gummow and Hayne JJ at 77). In recognition of that fact, each sentence for manslaughter must be decided by reference to the facts which inform the level of objective seriousness in the particular case and, where relevant, by reference to the exculpatory matters and personal circumstances of the offender that in an appropriate case may lead a court to significantly ameliorate the length of a sentence which might otherwise be imposed.

36 In R v Trevenna [2004] NSWCCA 43; 149 A Crim R 505 where an extensive examination of manslaughter sentences was undertaken, Barr J commented at [98] that:

So variable is the crime of manslaughter, both in its legal formulation and in the range of culpability that it contemplates, that the identification of the available range of sentence in any individual case is notoriously difficult.

37 Spigelman CJ observed in R v Forbes [2005] NSWCCA 377; 160 A Crim R 1:

[133] As has frequently been stated, manslaughter is almost unique in its protean character as an offence. (See in particular the observations of Gleeson CJ in R v Blacklidge (unreported, Court of Criminal Appeal, 12 December 1995, esp pp 2-3.) In its objective gravity it may vary, as has been pointed out, from a joke gone wrong to facts just short of murder ( R v Weinman (1987) 49 SASR 248 at 252; R v Hoerler (2004) 147 A Crim R 520 at [39]).

[134] It is also relevant to recognise that, although manslaughters can be characterised in different ways, particularly in the various contexts which may reduce what would otherwise be a murder to manslaughter, the degree of variation within any such category is generally also over a wide range. Matters of fact and degree arise in all categories of manslaughter.

38 Neither statistical examination nor the examination of results in other cases assists me, in any decisive way, in reaching a decision about the sentence to be imposed in this case although they do operate as a general guide. What remains fundamental in this case is that there has been an unlawful taking of a human life for which this offender has been found criminally liable and for which he must be sentenced to imprisonment.

39 It is in that context that the recognised sentencing principles of punishment, retribution and deterrence must each play their part in the sentencing process. I must also have regard to the aggravating and, if any, the mitigating circumstances which have application in this case.

Matters of aggravation

40 Caleb died in the presence of a number of his friends, all but one being under the age of 18. Section 21A(2)(ea) of the Sentencing Act identifies that as a feature of aggravation. It is of weight in this sentencing exercise because of what I am satisfied each of the young men continue to experience after their exposure to the violent death of their friend and cousin and the graphic nature of the knife injuries he suffered. I am careful to differentiate between their statements as victim impact statements which I must approach in accordance with well settled law and their statements as evidence under s 21A(2)(ea) despite there being an inevitable overlap between those two matters with no bright line to distinguish them. That said, when reading their statements as victim impact statements I acknowledge the love, respect and admiration they each had for Caleb as one of the eldest in their group, and the anger and sadness they feel at what they see as the senseless loss of a brother and a mate. I trust that in time they will learn from the strength, courage and calm that their community has shown during the trial and that they will remain true to their memory of Caleb.

41 For sentencing purposes I take into account the fact that because they were children at the time of the incident and their proximity to the violence, compounded perhaps by changes in their outlook and the often chaotic and intense emotions that are the hallmark of adolescence, they feel that the memory of the night will never leave them. I note in particular that one boy passes the place where Caleb died every day on the way to school, another is hyper vigilant and untrusting, while the boy who was closest to the fight feels he could and should have done more to intervene and Caleb may not have died. I will give appropriate weight to the fact that the offence was committed in the presence of six children in the calculation of sentence. I am aware of the need for it not to overwhelm other sentencing considerations.

42 That a weapon was used in the commission of the offence is a matter of aggravation under s 21A(2)(c) of the Sentencing Act. Gregory Matthews, Manager of Regional Imports Pty Ltd, a wholesale importing business that predominantly imports knives, described the knife as a spring assisted knife where a button on the handle of the knife engages the spring, so that the blade springs out automatically. In 2004, despite placing an order with the American manufacturers of the knife specifying that the spring be disengaged before delivery, he received a knife complete with this mechanism, which he returned to America because of its status as a prohibited weapon in Australia. He gave evidence that it was possible to purchase the knife on the internet from American retailers.

43 The knife used to kill Caleb was by its design, its capacity for concealment and its potentially lethal use, a prohibited import under Commonwealth law and a prohibited weapon in New South Wales. The offender is not to be sentenced for any offence associated with his possession of the knife as a prohibited article. I regard his use of the knife as a factor of aggravation because, on the available evidence, I am compelled to the view that he had the knife available for his use on the late evening of 14 February 2009 knowing its potential for harm. While I cannot say whether he customarily carried the knife in his pocket or his car or whether he took it from the house that evening I am persuaded that when he got out of the car, he deliberately flicked open the knife by depressing the button, extending the blade and then used the knife offensively. It was this conduct that resulted in the death of a young man who was a complete stranger to him.

44 In R v West [2011] NSWCCA 91 this Court observed in the context of sentencing for manslaughter where no issue of self-defence arises (as is the case here) that alcohol-fuelled offences of violence with knives are frequently committed impulsively, often by young men with more bravado than common sense and who it can often be said would not otherwise have acted violently , much less faced sentence for the death of another, were it not for their youth, their drunkenness and the availability of the knife. For that reason the Court observed that general deterance has particular application in sentencing those offenders. In the present case the same considerations apply despite the offender being a man in his 40s, who had been exposed to and punished for violence in the past and a person who ought for those reasons alone, irrespective of his intoxication, have had the self control and the maturity to leave a weapon he must have known had a lelthal capacity out of the mix.

45 The sentence must also serve to deter others from arming themselves with weapons of any kind were they to find themselves angered by the attitude of another driver (or in this case a pedestrian) which, on the most benign view of the offender's motivations, is why he armed himself with a knife and confronted Caleb at all after Caleb responded angrily and in the moment to what he apparently perceived as the offender's failure to keep a proper look out as he drove his car across the footpath or the driveway at speed. Although the offender did not use his car as a weapon and kill a pedestrian in an aggressive response to being slighted, as was the case in R v Ward [2010] NSWSC 304, and acknowledging as I do that the offender in that case was convicted of murder where a standard non-parole period of 20 years applied, this offender did retaliate with a knife from which death resulted. For that reason the imposition of sentence in this case must reflect the Court's concern to ensure that unprovoked and unrestrained displays of violence by road users enraged by other road users will be met with severe penalties (see Director of Public Prosecutions v Lothian [2006] VSCA 217 and Police v Kennedy [2005] SASC 173).

The offender's subjective circumstances

46 The offender is currently 45 years of age. He grew up in Mount Druitt and is the eldest of five children. He attended school until Year 10 at which time he commenced employment as a metal fabricator and then as a mechanic.

47 He has a criminal record for offences of violence which have attracted prison terms in the past, the most recent being a sentence of imprisonment for 3 years for an offence committed whilst in prison in 1986. Since then, and at regular intervals, he has breached the motor traffic laws in various ways including attracting a non-custodial penalty and lengthy disqualification in 2005 for driving without a licence having never been licensed. While ordinarily traffic offences are disregarded when a court is sentencing for manslaughter, in this case they reflect the offender's ongoing disregard of the traffic law since upon enquiry I was informed that whilst the period of disqualification imposed in 2005 had expired by 14 February 2009 the offender continued to drive unlicensed and was in fact driving unlicensed on the night he almost hit Caleb. I do not propose to impose a heavier sentence because of that attitude. It is, however, a matter relevant to take into account generally on the question of rehabilitation.

48 At the time of the offence the offender was residing and working as a mechanic at Nambucca Heads. He has four children aged between 21 and 26 to a former partner. It appears he has had no sustained relationship with his children because of acrimony in the relationship with his former partner. His elderly parents remain supportive of him, as do respected members of the community with whom the offender has formed lasting friendships over many years. I note in particular the testimonial from Karl Pirchmoser, a communications educator with New South Wales Ambulance Service. He tells me that he has known the offender for 11 years, first meeting him as a student when teaching at Dubbo TAFE when the offender had need to change his career path after injuring his back in a work-related accident whilst working as a mechanic with the Ambulance Service. Mr Pirchmoser describes the offender as a quiet man who dealt with his back injury uncomplainingly and who committed himself eventually to the task of being an adult educator. Over the course of their friendship Mr Pirchmoser has welcomed the offender into his home where he observed him to be kind and gentle to his youngest daughter who continues to regard the offender as a member of the family. He said that whilst the offender drank alcohol he had never seen him angry or violent towards anyone.

49 David Byrnes attested to a friendship with the offender for 20 years formed whilst they were both workers in the motor trade. The offender has apparently lived with Mr Byrnes and his family for a period of three years at some unspecified time in the past and Mr Byrnes also confirmed that he has never witnessed or heard of the offender showing any signs of aggression.

50 Between February 2006 and early 2008 Ron Maxwell, Chief Executive Officer of Western College, confirmed that the offender was employed at the college as an Information Technology tutor. During the term of the offender's period of employment Mr Maxwell described him as acting in a mentoring role primarily for disadvantaged indigenous students undertaking pre-employment programs. He went on to say that the offender fulfilled his employment obligations enthusiastically and in a professional manner. It would appear that he left his role as an educator to resume active engagement in the motor vehicle trade and that he moved to Nambucca Heads in pursuit of that endeavour.

51 Since being detained in custody the offender has worked as a clerk and helped in production supervision within the engineering workshop at Parklea Prison where he was found by Mark Ngo, a teacher in metal fabrication and welding and associated with NSW TAFE, to be reliable and trustworthy and who, despite observable stress, has taken time to help other inmates. In Mr Ngo's assessment this has assisted in maintaining the smooth operations within the workshop.

52 The offender's commendable work history since his release from custody in 1988, his capacity to retain supportive friendships over many years continuing to the current time and, aside from his motor traffic record, his capacity to conform with society's expectations without any descent into violence for 23 years are matters to be taken into account in the offender's favour in assessing whether or not I can make a positive finding, on a balance of probabilities, that he has sound prospects of rehabilitation as provided for in s 21A(1) of the Sentencing Act. Before I turn to consider that question, I need to make some reference to the offender's psychiatric condition and the results of assessment by a forensic psychiatrist.

53 In May 2009 (after being detained in custody for just over three months) Dr Vannitamby, a medical practitioner associated with Justice Health, assessed the offender's mood as having declined; that he experienced poor sleep, racing thoughts, poor appetite, lethargy, anxiety and daily suicidal ideation. In September 2009 Dr Samir (also associated with Justice Health) found that although the offender's mood had improved over the intervening months he remained depressed, but there were no signs of psychosis, nor was he suicidal.

54 Following the results of a formal psychological assessment in July 2010 by Dr Richard Furst, consultant forensic psychiatrist, the offender was diagnosed as suffering from a major depressive disorder for which he was being prescribed antidepressant and antipsychotic medication to which he was responding well. It was not suggested that the offender was depressed or otherwise suffering from any psychiatric condition at the time of offending.

55 Dr Furst reported that although the offender's mood had improved and he had shown insight into his problems with depression and was accepting of psychiatric help, he continued to find it hard to cope with the fact that someone has died as a consequence of his actions and he appeared to be remorseful about the events. He told Dr Furst that he struggles with it every day and that he thinks about Caleb's parents and how he would feel if it was his child who had died.

56 Dr Furst's report was prepared prior to the first trial in August 2010. The account that the offender gave to the psychiatrist of the events that culminated in the death of Caleb is contrary to my findings for sentencing purposes and contrary to what I consider to be the overwhelming weight of the evidence. In effect, he gave the doctor the same account as he gave in evidence at both trials. The genuineness of his claims for feelings of remorse has to be considered in that light. There is no updated report that reveals anything of the offender's psychiatric condition at the present time. He did not give evidence on sentence. Mr Young confirmed his instructions that the offender does not resile from the account given in evidence before the jury.

57 In Butters v R [2010] NSWCCA 1 at [17] I considered the operation of s 21A(3)(i) of the Sentencing Act which requires an offender to provide evidence that he or she has accepted responsibility for his/her actions and the loss that results from these actions as a statutory precondition to relying upon remorse as a mitigating factor. In the present case it is not the offender's failure to give evidence that operates as an impediment since his account to Dr Furst was available as evidence of remorse. What is fatal in my view is his continued adherence to an account which falsely nominates Caleb as the person in possession of a knife and the aggressor and accordingly, in effect, has Caleb dying from his own unprovoked acts of violence directed at the offender and against which the offender was forced to defend himself. Despite other evidence of rehabilitation which might have been taken into account in the offender's favour, as the Court of Criminal Appeal observed in R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [169], cited most recently in Alvares v R [2011] NSWCCA 33 at [83], when considering whether an offender is unlikely to reoffend and has otherwise good prospects of rehabilitation, "remorse will be a major factor in determining whether those matters of mitigation exist: without true remorse it is difficult to see how either finding could be made".

58 In this case, and after careful weighting of all the evidence, I will not disregard entirely the evidence bearing upon the prospects of the offender's rehabilitation at his eventual release. I accept that whatever may have been operating on his mind and his mood on 14 February 2009, he is not a man who should be treated as having an habitual tendency to violence. I accept that at some level he is sorry for Caleb's death, for which he is solely responsible, but that for reasons that I cannot fathom he refuses to face that reality or cannot. I must not, and I do not overlook that consistent with the jury's verdict he did not act with the intention of killing Caleb or inflicting grievous bodily harm.

59 In imposing a sentence in this case I acknowledge the legitimate community expectation that human life will be valued above all else and that those who unlawfully kill will be punished by a lengthy term of imprisonment. I am also conscious that the community expects that sentencing judges will reserve the harshest punishment for offenders whose conduct exhibits the highest level of moral culpability for manslaughter. I am not satisfied that this offender's moral culpability is of that order. I do accept the Crown's submission that the objective gravity of this offence is towards the high end of seriousness for manslaughter by an unlawful and dangerous act and that the sentence to be imposed must denounce the offender's unprovoked and unrestrained acts of serious violence with a weapon without any issue of self-defence being at play. As I have made clear, I am also satisfied that the objective seriousness of his conduct is untempered by anything in his subjective circumstances that might otherwise operate in mitigation of sentence.

60 Mr Young submitted that it would be open for me to find special circumstances requiring that the parole period be greater than what would otherwise result from an application of the statutory ratio as provided for in s 44 of the Sentencing Act on the basis that the offender would benefit from ongoing supervision upon his release to ensure against any relapse of his psychiatric state and the potential for dangerous drinking practices to be used as a palliative. With the sentence that I will impose, the support from friends and family and his capacity for paid employment as a skilled tradesman I am confident that there will be well and sufficient time on parole for the offender to receive additional assistance from institutional sources. In those circumstances I do not find special circumstances and I do not propose to disturb the statutory ratio.

61 For that reason the sentence of imprisonment must reflect the various features to which I have referred which, in combination, reflect the high level of objective seriousness in his offending.

Sentence

62 Mitchell Anthony Winefield for the offence of manslaughter I sentence you to imprisonment for 10 years comprised of a non-parole period of 7 years and 6 months to date from 14 February 2009 and to expire on 13 August 2016, with a balance of term of 2 years and 6 months expiring on 13 February 2019.

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Decision last updated: 05 May 2011