Supreme Court New South Wales

• Medium Neutral Citation: R v MATHERS [2011] NSWSC 339
• Hearing dates: 11, 21 April 2011
• Decision date: 28 April 2011
• Jurisdiction: Common Law - Criminal
• Before: Hall J

Decision

Imprisonment for a term of 2 years. In order to allow for the period of 20 days already served in custody, such sentence is taken to have commenced on 8 April 2011 and to expire on 7 April 2013. I suspend execution of the sentence as from today and direct that you be released from custody on condition that you enter into a bond for the operative remaining period of the 2 year sentence. The bond will contain the following conditions:-

(1) That the offender appear before the Court, if called on to do so, at any time during the term of the bond.

(2) That he be of good behaviour.

(3) That he inform the Registrar of this Court of any change in residential address.

• Catchwords: MANSLAUGHTER - sentencing offender on basis of substantial impairment - offender assisted his deceased partner to commit suicide - ingestion of amitriptyline tablets and final act of suffocation - deceased had been partner of offender in a loving relationship of 22 years - deceased had suffered pain arising from spinal condition - expressed her wish to die as expressed in suicide note - offender's participation would not have been discovered or established were it nor for offender's disclosures to police- medical evidence established offender suffered a depressive illness/adjustment disorder arising from an underlying condition within meaning of s.23A of the Crimes Act 1900 -; sentencing considerations - only motive was to assist deceased in carrying out her express intention - no lengthy period of planning or premeditation - culpability at low end of range of sentences for the offence of manslaughter - leniency extended for offender's disclosures and confession of guilt and for plea of guilty - term of imprisonment of 2 years - suspended sentence - allowance made for time spent in custody of 20 days.
• Legislation Cited: Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999
• Cases Cited: AB v R (1999) 198 CLR 111; Douar v R (2005) 159 A Crim R 154; R v Assaad [2009] NSWCCA 182; R v Blacklidge (NSWCCA, unreported, 12 December 1995); R v Byrne [1960] 2 QB 396; R v Dally (2000) 115 A Crim R 582; R v Ellis (1986) NSWLR 603; R v Hill (1981) 3 A Crim R 397; R v Zamagias [2002] NSWCCA 17; Ryan v R (2001) 206 CLR 267
• Category: Sentence
• Parties: REGINA v David Scott MATHERS
• Representation: Counsel: C: R Hobart SC; O: A Bellanto QC/H White; Solicitors: C: S Kavanagh; O: Acclaim Legal
• File Number(s): 2009/53492

sentence

1 HALL J: On 11 April 2011, Mr David Scott Mathers pleaded guilty to a charge of manslaughter in the following terms:-

"That on 7 July 2009 at Ashfield he feloniously did slay Eva Griffith. Section 18(1)(b) Crimes Act 1900 (NSW)"

2 On 11 April 2011, Mr Mathers was remanded on bail until today for sentence.

3 His plea was accepted in full satisfaction of a charge of murder that had previously been preferred.

4 The circumstances of the offence to which a plea of guilty has been entered are such that I propose to release Mr Mathers upon imposing a wholly suspended sentence of imprisonment of 2 years backdated to take account for the time already spent in custody, namely, 20 days.

5 That determination has been made following a conclusion reached by me that Mr Mathers should have his culpability assessed towards the lower end of the possible range. I will refer shortly to the facts and circumstances upon which I have relied in reaching that conclusion.

Background

6 The deceased was 78 years and 3 months of age as at the date of death. Her date of birth was 5 April 1931.

7 Mr Mathers was 64 years and 11 months of age as at the date of her death. He was born on 25 July 1944. Accordingly, at the present time he is 66 years and 9 months of age.

8 The Crown has tendered a number of documents which have been marked as Exhibits A1 to A15.

9 Mr Mathers participated in interviews conducted by police on 7 July 2009. In the ERISP transcript of that date, he provided information about his relationship with the deceased and other background matters. He spoke of his relationship with Ms Griffith over some 22 years which had always been conducted in separate houses, he having lived since 1981 at an address in Lidcombe and the deceased having lived in a home unit at Ashfield.

10 They had originally met through a music group. Both he and the deceased had been musicians. Neither he nor the deceased had any children. Ms Griffith had a twin sister, Gloria Jackson.

11 The Crown tendered a Certificate pursuant to s.35A of the Crimes (Sentencing Procedure) Act 1999 which confirms that consultation has taken place with Ms Jackson through her solicitor.

12 Mr Mathers gave a history to police that the deceased had the condition of osteoporosis and that she had been under the care of a rheumatologist at Concord Hospital. She was prescribed but later taken off medication because he said it was not doing her any good and it was not preventing the degeneration.

13 He said that in a period prior to her death, the deceased had experienced pain and that one night, he thought in the middle of June 2009, she was unable to move by reason of pain and was crying out in pain.

14 The deceased's condition was diagnosed as one of osteoporosis, arthritis and sciatica. She was admitted to Concord Hospital suffering immense pain in her back on 13 June 2009 and was discharged on 16 June 2009.

15 She had further severe episodes of extreme pain, causing her to be admitted to Royal Prince Alfred Hospital on 19 June 2009. She was discharged on 23 June 2009.

16 Copies of the relevant records from Royal Prince Alfred Hospital and Concord Hospital were tendered by the Crown (Exhibit C). I have had regard to those records for the purposes of determining the nature of the deceased's medical condition, diagnosis and treatment given to her. I have also had regard to the statement of Dr Sharda Patel, general practitioner.

17 Mr Mathers told police that he had, on occasions, discussed Ms Griffith's future with her. He said that she had made up her mind to commit suicide because, if things got to the stage where she had to go a nursing home, her ability to take control, she believed, would be taken from her. He said the last time he discussed these sort of matters with her was on 5 July 2009 in her bedroom.

18 He said that, on the Sunday before her death, 5 July 2009, the deceased took a large number of amitriptyline pills (an anti-depressant but also used for treatment of pain) and she drank some wine and fell asleep. She was asleep the next day, the Monday, and that during the day her breathing was faint.

19 Later in the day, Monday 6 July 2009, Mr Mathers said that the deceased was calling out in pain every time she moved. The offender said that this was when he assisted her to take more of the pills. He gave her another 13 amitriptyline tablets. This was at about 5.00 pm. He said that she went off to sleep, in an interview with police, he said that the next morning, 7 July 2009, "I finished what she'd started, didn't I" (Q.114). When asked what he meant, he said "I suffocated her" . He said this occurred at about 7.30 am in her bedroom. He said she was still breathing but he did not think that she was conscious. He said he tried to suffocate her with a pillow and she seemed to be getting air from somewhere. He then tried a towel and putting pressure on the airways, the mouth and nostrils and then he used a plastic bag. He said (Q.131):-

"She always talked about, you know, looked at her mother in a nursing home and said, 'when I get to that stage, it's a handful of pills and a plastic bag'."

20 Mr Mathers stated that in taking action to suffocate the deceased he was intending to kill her. When asked why, he responded (Q.145):-

"Because firstly she wanted to do it, it was a , there were one failed suicide, I think the others, ... the next one looked like being a failure too. She was in pain, I had to ... If I wasn't facing you having committed the crime, I'd be facing her in a bloody nursing home and she'd be immobilised and in pain if she moved and why didn't I do something when I could."

21 He told police that Ms Griffith's sister was not present on the Sunday evening but was there in the afternoon and "... she witnessed what I was doing" .

22 He said that Ms Jackson was present and then he handed the pills to the deceased and put the glass to her lips.

23 The Crown Case Statement records that at about 9.30 am on 7 July 2009 Mr Mathers telephoned the NSW Ambulance Service. Ambulance officers attended Ms Griffith's address at 9.57 am and spoke to Mr Mathers, who directed them to a bedroom where they found the deceased on a bed with no signs of life. The officers heard Mr Mathers contact a solicitor by telephone.

24 When the ambulance officers entered the room, Mrs Gloria Jackson, the twin sister of the deceased, was present. She pointed out a handwritten note under the pillow supporting the deceased's head. The note indicated that because she suffered non-reversible disintegration of the spine which would get worse, she had decided to commit suicide.

25 Mr Mathers told ambulance officers that he knew about the suicide note and that it had been written two days previously. He said that he had been with the deceased the whole time.

26 Soon after police arrived at the scene, ambulance officers showed them the note under the pillow. They told Mr Mathers that there were indications that Ms Griffith had committed suicide and because of that the matter would be reported to the coroner and her body examined.

27 Admissions made by Mr Mathers when subsequently interviewed by police formed the basis of a charge of murder brought against him. He was refused bail. He spent 20 days in custody prior to release on bail.

28 A committal hearing was held on 17 June 2010. There were two witnesses called for cross-examination at the committal, Dr Mathew Orde, forensic pathologist, who performed the post-mortem and Dr Judith Perl who provided a toxicology report as to the effects of amitriptyline and paracetamol.

29 Dr Judith Perl provided an expert report dated 23 March 2010. Confirmation was conducted on a femoral blood sample taken from the deceased which indicated the presence of amitriptyline (1.2 mg/L) and paracetamol (less than 3 mg/L).

30 Dr Perl explained that amitriptyline is an antidepressant although it can be used for other conditions including pain relief.

31 The blood concentration of amitriptyline found in the blood of the deceased was well above the expected therapeutic concentrations and potentially within the lethal range and that death due to cardiac effects or a respiratory depression could not be excluded.

32 The blood concentration of paracetamol was generally below the target therapeutic range. It is generally given for management of mild to moderate pain. Dr Perl concluded:-

"10. In summary, the significant concentration of amitriptyline does suggest an excessive dose of this drug was ingested by the Deceased and such a level is highly likely to have contributed to her death."

33 At the committal hearing, Dr Perl accepted that, given the amount of tablets ingested on the Sunday and Monday evening, it was more likely that death would have occurred. Her suffocation, having regard to the depressant effects of the drugs on respiration, would simply have accelerated death.

34 Mr Mathers was committed for trial on the charge of murder.

The objective seriousness of the offences

35 In determining an appropriate sentence, it is necessary to establish the objective seriousness of the offence committed, as well as the personal circumstances of the offender.

36 There is, of course, nothing more precious than human life and, in this case, the death of Ms Griffith is particularly poignant, having regard to the long relationship which she enjoyed with Mr Mathers. It was a relationship marked by a shared happiness and devotion to one another.

37 There are, as one would expect, degrees of culpability in relation to the offence of manslaughter. In R v Blacklidge (NSWCCA, unreported 12 December 1995), Gleeson CJ stated (at 4):-

"It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability."

38 In August 2010, Mr Mathers offered to plead guilty to a charge of manslaughter on the basis of substantial impairment. The Crown accepted the plea on that basis. The plea involves what is referred to as a partial defence formerly known as diminished responsibility.

39 In Blacklidge (supra), the Chief Justice commented upon the partial defence in the following terms (at 4):-

"... The abnormality of mind substantially impairs the offender's mental responsibility for his or her act but it does not negate such responsibility. The reduction in the capacity for self-control which results from the abnormality of mind diminishes the responsibility but it does not excuse the act (R v Low (1991) 57 A Crim R 8)."

40 Accordingly, in the present case, it is necessary to establish the relevant state of mind of Mr Mathers at the time he committed the offence. Having done so, the question then arises as to what extent is it reasonable to attribute culpability or moral blameworthiness to him, given his state of mind.

41 Section 23A of the Crimes Act , in part, provides that a person who would otherwise be guilty of murder is not to be convicted of murder if:-

(1) At the time of the acts or omissions causing the death concerned, the person's capacity to understand events or to judge whether the person's actions were right or wrong or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition.

(2) The impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

42 The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of s.23A. Section 23A(8) defines "underlying condition" as meaning a pre-existing mental or physiological condition, other than a condition of a transitory kind.

43 It has been held "abnormality of the mind" means "a state of mind so different from that of ordinary human beings that the reasonable man would term it 'abnormal'". It has been held wide enough to cover the mind's activities in all its aspects including the ability to form a rational judgment as to whether an act is right or wrong: R v Byrne [1960] 2 QB 396 per Lord Parker CJ at 403.

The medical evidence

44 The medical evidence tendered in the present proceedings includes a report from a treating doctor, Mr Mathers' general practitioner, Dr Razvan, dated 23 July 2009 together with specialist medical opinion including, in particular, the opinions of Dr Nielssen and Dr Samuels and Dr John Hilton, consultant in forensic medicine.

(1) Dr Razvan, general practitioner

45 Dr Razvan, in his report, stated that Mr Mathers' general state of health was poor. He said that he suffered from hypertension and hyperlipidaemia. He underwent a radical prostatectomy for a cancer followed by a degree of incontinence. He also underwent bilateral corneal grafts. One failed and he needs to use pinhole glasses in order to see. He was prescribed medication for his hypertension and hypolipidaemia and has been prescribed medication by his ophthalmologist.

46 Dr Razvan stated that Mr Mathers is highly regarded in the community and observed:-

"I know him as a cultured person, a gentle person known as 'the blind musician'."

(2) Dr Nielssen, psychiatrist

47 Dr Nielssen's report dated 7 April 2011 contains a detailed history of events concerning Mr Mathers' relationship with Ms Griffith and relevant events prior to her death, details of his medical and psychiatric history and other general history.

48 Dr Nielssen noted that he had had a relationship with the deceased for 22 years and that in the early part of it, Ms Griffith was caring for her elderly mother, who eventually moved to a nursing home. She said that after visiting her mother she would often say that she never wanted to be placed in a nursing home herself. Mr Mathers told Dr Nielssen that he himself had a similar experience with his mother's death from a painful cancer.

49 He provided Dr Nielssen with an account as to Ms Griffith's problems associated with osteoporosis and arthritis and, in particular, severe back pain and the doctors who had cared for her had told her that "nothing could be done" about her condition or her pain. He said that after she received that advice, she decided to end her life.

50 The offender told Dr Nielssen "at this stage I wonder what my role is ... On one hand, I don't want to lose her and on the other hand I did not want to see her in agony" . He said "I asked her if I put on a display could I change your mind and she said 'no'" .

51 Mr Mathers' history to Dr Nielssen included the fact that the deceased had discussed the plan with her twin sister who had been aware of Ms Griffith's wish to end her life because of the severity of her pain and her wish to avoid going to a nursing home.

52 He told Dr Nielssen that after Ms Griffith had taken the medication she lapsed into unconsciousness and began to breathe irregularly. He said that the state of her breathing convinced him that she was "brain dead" but said that as he watched her she continued to breathe. He said "I felt that I'd run out of options ... If she woke up, she would have been a vegetable and would have had to go to a nursing home, which was her worst nightmare ... so I suffocated her with a pillow" (p.2).

53 In the history of the relationship, Mr Mathers told Dr Nielssen that, although they had separate houses, they spent a lot of time together and he would see Ms Griffith everyday and would speak to her at night when he stayed at his own place.

54 He said that they had had a group of mutual friends and several holidays together including overseas trips. He said that when it became evident how unwell and limited Ms Griffith had become, he was prepared to become her carer, including moving in to live with her if necessary.

55 The material in evidence establishes that he was a beneficiary in her Will but he had been so in an earlier Will. He told Dr Nielssen "money was not a motivation" . The Crown accepts the truth of the evidence in that respect.

56 As to his own emotional state at the time, Mr Mathers told Dr Nielssen that he was "highly stressed" . He said that he has always been an anxious person and had retired from teaching because of the anxiety experienced in teaching situations. He said that when Ms Griffith expressed her wish to commit suicide, he felt very distressed and sad about the prospect of losing her.

57 He said he was also saddened by the effect her chronic pain had on her. The history given included an inability to fall asleep and, when he did so, waking up worrying what to do. He said that he had had difficulty thinking clearly or making a decision.

58 He had given a history of being badly depressed in the past, but he said that his experience on this occasion "wasn't like that" .

59 He was seen by a psychiatrist in the late 1970s by reason of stress experienced whilst teaching and was invalided from teaching on the grounds of anxiety and depression. Since leaving work he had not had any kind of counselling or other treatment for any psychiatric disorder.

60 The history given to Dr Nielssen was that Mr Mathers had experienced symptoms of depression at intervals during his adult life and he reported a severe episode of depression around the time that he dropped out of teaching when he contemplated suicide.

61 He had a further period of depression when he made an unsuccessful attempt to retrain as a physiotherapist.

62 Whilst he said that the years that he had with Ms Griffith had been the happiest of his life, he became depressed again after she became ill.

63 During the deceased's illness, he said that he experienced difficulty thinking clearly and was unable to make a decision. His sleep was interrupted and he felt feelings of anxiety for no clear reason.

64 Dr Nielssen, as I have earlier indicated, made a diagnosis of anxiety disorder and of a depressive illness. He said the disordered condition was best described as an adjustment disorder or a clinically significant response to a life event, namely, in his case, the grief reaction surrounding his long term partner's physical condition and her planned suicide.

65 Dr Nielssen considered that Mr Mathers' mood disorders were an underlying condition within the meaning of s.23A of the Crimes Act and that his condition gave rise to an abnormality of mind, in the form of a state of anxiety and depression which affected his perception of events, his ability to judge right from wrong and also his ability to control his actions. He further opined that his depressed state effected his moral decision-making during his sleepless vigil after the deceased's initial overdose and his decision to help her take a further overdose and then to suffocate her when she continued to breathe in an erratic way. He said these were affected by the morbid perception of events and belief about the deceased's wishes and what he had to do. Further, inflexible thinking arising from his unusual personality contributed to the severity of the impairment in his reasoning which he experienced at the time of the offence.

(3) Dr Samuels, forensic psychiatrist

66 Dr Anthony Samuels, consultant psychologist, examined the offender at the request of the Director of Public Prosecutions on 6 April 2011. In his detailed report, he reviewed the sources of information that had been provided to him including the Crown Case Statement and Dr Perl's report of 23 March 2010.

67 Dr Samuels noted that at the time of Ms Griffith's death, Mr Mathers was on an anti-viral agent and that there was some evidence that this medication could cause depressive and anxiety type symptoms. He said it was certainly possible that this medication could have increased his vulnerability to depression.

68 Dr Samuels expressed the opinion that he had a vulnerability to depression which had become more prominent in his mid-30s and that there were vulnerabilities in his personality structure that compounded his difficulties in coping with his partner's illness.

69 He observed that Ms Griffith was an enormously important friend and person in his life and, in the context of her deteriorating physical state and the prospect of losing her, he suffered a return of depressive and anxiety symptoms.

70 The history included a three week period in which he was preoccupied with the deceased's pain and suffering and was not sleeping and was consulting with professionals and desperately seeking ways to help her.

71 On the issue of substantial impairment, Dr Samuels was of the view that, as at the time of Ms Griffith's death on 7 July 2009, Mr Mathers was suffering, possibly for up to a period of three weeks, a depressive reaction in terms of DSM-IV-TR which was most likely an Adjustment Disorder with Depression and Anxiety.

72 In the days before her death, his mood and anxiety symptoms could have reached a threshold and diagnosis of Major Depressive Disorder. He considered that the depressive condition was an underlying condition which lead to an impairment of an abnormality of mind within the meaning of s.23A of the Crimes Act.

73 In light of the medical evidence of Dr Nielssen and of Dr Samuels, it is clear that the Crown appropriately acted in accepting the plea to manslaughter.

Submissions

74 I have had the benefit of detailed written submissions prepared by counsel for Mr Mathers, Mr A Bellanto QC and Mr H White of counsel. I have also had detailed submissions from the learned Crown Prosecutor dated 19 April 2011. The written submissions by counsel were supplemented by oral submissions.

75 I express my indebtedness to all counsel for their detailed and helpful submissions.

The appropriate sentence

76 There are a number of well-recognised aspects to the sentencing of offenders. They include punishment, denunciation, deterrence and protection of the community.

77 However, sentencing is not a blunt instrument Sentences are to be imposed in accordance with accepted sentencing principles and imposed only after careful assessment of all material facts and circumstances concerning the particular offence and the offender. There is no basis for excluding a merciful application of relevant principles where the evidence demands it.

78 Important in this case are the following matters:-

(1) Ms Griffith, on the evidence, was in a cognitively sound state of mind when she decided that she wished to end her life.

(2) In that respect, she held a strong fear that the painful condition from which she had suffered would culminate in her being confined to a nursing home and to there live the life of a fully dependent invalid.

(3) The fact that Ms Griffith had mental capacity, at the relevant time, at the relevant time is an important fact. This is not a case of one person making a decision for another.

(4) Ms Griffith made known to Mr Mathers her wishes, he being the person that she loved more than anyone else. That presented the offender with an agonising conflict. As he told police, "She couldn't see any other way out to do this. And I couldn't see anything else but to respect that decision" (ERISP Q.96).

(5) Human experience indicates that lucidity of thought in resolving situations involving personal conflict is often difficult to achieve. Where, as in the present case, there is affirmative evidence that the offender's decision-making was impaired by his depressive state, it is clear that his capacity to resolve the situation that he was in, namely, a life/death decision of the person that he loved, was significantly reduced. Dr Nielssen encapsulated the dilemma facing the offender as follows (p.7):-

"... People who are depressed have a view of the world that is pervasively negative, and from that perspective Mr Mathers saw Ms Griffith's future as bleak and her decision to commit suicide as rational. His depressed state affected his moral decision-making during his sleepless vigil after her initial overdose, and his decision to help her to take a further overdose and then to suffocate her when she continued to breathe in an erratic way, notwithstanding the possibility that he exaggerated his role in her suffocation, was affected by the morbid perception of events and belief about her wishes and what he had to do, arising from the perspective of a person in a depressed state. Inflexible thinking arising from Mr Mathers' unusual personality contributed to the severity of the impairment in his reasoning he experienced at the time of the offence."

79 In R v Hill (1981) 3 A Crim R 397, Street CJ at 402 observed:-

"The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual context which provides some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party."

80 In a case such as the present, the imposition of a sentence which meets both the standards and demands of the criminal justice system and the expectations of the community at large, but which also takes account of the offender's dilemma and mental state, is not one without difficulty.

Mitigating factors

81 In determining the sentence to be imposed, I find and take account of the following mitigating circumstances:-

(1) The offender's previous good character.

(2) The motives of love and compassion which attended his acts contributing to Ms Griffith's death.

(3) The fact that Ms Griffith was very ill and in severe pain and wanting to end her life.

(4) The medical evidence which uniformly establishes that, in the events occurring in the three weeks prior to Ms Griffith's death, Mr Mathers suffered a depressive reaction and the development of an adjustment disorder and depression with anxiety which led to an impairment of his perception of events and his decision-making capacity.

(5) The plea of guilty to the charge of manslaughter and the fact that he was genuinely remorseful for his actions.

(6) The candour of Mr Mathers' disclosure and admissions to police and the fact that his frank record of interview was accepted by the Crown as having been an accurate account.

(7) The absence of any prior convictions and that he has led an unblemished life.

82 In the present case, it is noted that there are no aggravating factors that the Crown relies on.

83 It has been submitted by Mr Bellanto QC for Mr Mathers in the present proceedings that there is no reason or cause for specific deterrence of the offender from committing similar offences. I accept that submission. I am satisfied that the offender will never offend again.

84 I also accept the submission made on behalf of Mr Mathers in determining sentence that there is no need to protect the community from him. This is a case in which the public hearing, the period spent in custody and the imposition of the sentence to be imposed will make Mr Mathers accountable for his actions, both in terms of consequences to the deceased and to the community.

85 On the issue of motive, the evidence uniformly establishes that Mr Mathers and Ms Griffith were devoted to one another and that the only motivation in assisting Ms Griffith's bringing her life to an end was a selfless act borne out of the love the offender held for her and what the offender understood to be in accordance with the deceased's express wishes. There is no evidence that his voluntary and intentional acts were motivated by any other factors.

86 I take into account that Mr Mathers' decision to assist Ms Griffith in bringing her life to an end was one made within a short time and driven by the circumstances to which I have referred. There was no long-term planning involved. There was no evidence of preparation by him.

87 The circumstances associated with Ms Griffith's death were such that the offender had the option of maintaining his silence or of volunteering, by way of admissions, his role in the events leading to her death. Mr Mathers chose the latter. For that he must be commended. Had he not done so, it is highly unlikely that his role or participation in the events would have been brought to the attention of the relevant authorities.

88 It is in accordance with sentencing principle that where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence: R v Ellis (1986) NSWLR 603 per Street CJ at 604. See also Ryan v R (2001) 206 CLR 267 and AB v R (1999) 198 CLR 111 at 126.

89 In addition, it is also accepted that leniency is to be extended where the confession of guilt is in the form of a plea of guilty.

90 The fact that the offender did voluntarily reveal his involvement has, I believe, an added significance beyond the admissions which were likely to lead to a criminal charge being preferred against him. His voluntary disclosures, in my assessment, at least indirectly provide a high level of corroboration of the truthfulness his account as to the circumstances preceding Ms Griffith's death and as to his motive and state of mind generally.

91 Ten references were tendered at the sentence hearing. I have read each one of them and they speak eloquently of Mr Mathers and of his commendable personal qualities.

92 It was submitted on behalf Mr Mathers that the objective criminality of the offence is at the lower end of the scale for manslaughter. I have earlier indicated that that submission accords with my own assessment. The maximum penalty for such an offence is 25 years imprisonment: s.24, Crimes Act . However, it is well recognised that there are different categories of manslaughter - some involving the requisite intent for murder and others not.

93 The Crown referred to the observations made in R v Dally (2000) 115 A Crim R 582 at [64]:-

"It is not the variety of manslaughter but the facts which determine the objective gravity of the offence. Neither variety (in that case, provocation or unlawful dangerous act) is inherently more serious than the other."

94 Accordingly, there is a uniform line of authority which accepts that manslaughter is an offence for which there is a truly wide range of culpability and, accordingly, there exists an extremely wide range of appropriate sentences.

95 By reason of the variety of circumstances that may arise, there is no precedent case or sentence which will determine the sentence to be imposed in a case such as the present. That said, I have had regard to the sentencing remarks to which I have been referred by counsel in their submissions.

96 In sentencing, it is necessary that account be taken of the specific purposes for which a Court may impose a sentence on an offender as set out in s.3A of the Crimes (Sentencing Procedure) Act . In addition, the Court is to have regard to the relevant aggravating and mitigating and other factors referred to in the provisions of s.21A of the Crimes (Sentencing Procedure) Act .

97 Mr Mathers' history, situation and circumstances of his offending means that three of the principal purposes of sentencing have no part to play in the determination of the sentence to be imposed. There is no need for specific deterrence. There is no need to protect the community from him and no need for rehabilitation or any tendency towards criminal or other anti-social behaviour.

98 In those circumstances, there remains considerations of general deterrence and retribution. In a case such as the present, one can be confident that few persons in the position that Mr Mathers was in prior to an offence concern themselves with what a court is likely to do if they fail.

99 However, because manslaughter remains a serious offence, it cannot be said that general deterrence has no part, as a general proposition, to play in the sentencing of offenders who come within the ambit of the section. Accordingly, it is a matter to which I give due weight.

100 The principle of general deterrence, though relevant and important in this case, is, however, modified by the fact that, at the time of the relevant acts, Mr Mathers suffered from the depressive illness diagnosed by Dr Nielssen and Dr Samuels.

101 The question of retribution, in a case such as the present, is tied up with the concept of the community's entitlement to feel that justice has been done, particularly given the sanctity of human life. That said, however, it is difficult to see a community view in a case such as the present which would emphasise retribution as being a matter that would warrant a substantial term of imprisonment.

102 The various sentencing options available are determined by the relevant legislative provisions. These include, in the case of an offender who is sentenced to imprisonment for not more than 2 years, the making of an intensive correction order or an order suspending the sentence.

103 In his oral submissions, Mr Bellanto proposed that a bond would be well within the sentencing discretion. The Court certainly has the power under s.9 of the Crimes (Sentencing Procedure) Act to make an order directing an offender to enter into a good behaviour bond for a specified term instead of imposing a sentence of imprisonment.

104 It was the Crown submission that, whilst a term of imprisonment should be imposed in order to express general deterrence and denunciation of the crime of manslaughter, the sentence should be fully suspended in order to reflect the tragic subjective features of the case.

105 In that respect, the Crown drew attention to the provisions of s.12 of the Crimes (Sentencing Procedure) Act concerned with suspended sentences. That section provides that a Court may impose a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order, inter alia, suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the Court may specify in the order and, secondly, directing that the offender be released from custody on condition that he or she enters into a good behaviour bond for a term not exceeding the term of the sentence.

106 It is well accepted that there are a number of steps involved in the imposition of a term of imprisonment such as a suspended sentence. They are discussed in R v Zamagias [2002] NSWCCA 17; Douar v R (2005) 159 A Crim R 154; R v Assaad [2009] NSWCCA 182.

107 In all the circumstances of the present case, including Mr Mathers' age and the circumstances of his offending, I have determined for the reason identified by the Crown that the appropriate sentence is a term of imprisonment. However, this is a case in which a sentence of full-time custody is not called for. The sentence should be suspended. In so concluding, I have also had regard to the matters to which I have referred and the period of time that Mr Mathers has spent in custody.

108 In determining the commencement date of the sentence to be imposed, I will backdate the sentence to commence on 8 April 2011 in order to allow for the period of 20 days that Mr Mathers spent in custody.

109 David Scott Mathers, I sentence you to imprisonment for a term of 2 years. In order to allow for the period of 20 days that you have already served in custody, such sentence is taken to have commenced on 8 April 2011 and to expire on 7 April 2013. I suspend execution of the sentence as from today and direct that you be released from custody on condition that you enter into a bond for the operative remaining period of the 2 year sentence.

110 The bond will contain the following conditions:-

(1) That you appear before the Court, if called on to do so, at any time during the term of the bond.

(2) That you be of good behaviour.

(3) That you inform the Registrar of this Court of any change in your residential address.

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Decision last updated: 28 April 2011