Supreme Court New South Wales

• Medium Neutral Citation: R v DA-PRA [2012] NSWSC 607
• Hearing dates: 31 May 2012
• Decision date: 04 June 2012
• Jurisdiction: Common Law - Criminal
• Before: RS HULME J

Decision

(1) For the manslaughter of Gervasio Da-Pra, I sentence you to imprisonment for a non-parole period of 4 years and 6 months commencing on 20 December 2009 together with a balance of term of 1 year and 6 months commencing on 20 June 2014;

(2) For causing grievous bodily harm to Vivienne Wighton with intent to murder her, I sentence you to imprisonment for a non-parole period of 4 years and 6 months commencing on 20 December 2012 together with a balance of term of 1 year and 6 months commencing on 20 June 2017;

(3) For the murder of Emma Wighton, I sentence you to imprisonment for a non-parole period of 10 years commencing on 20 December 2014 together with a balance of term of 5 years commencing on 20 December 2024;

(4) I record as the date upon which it appears to the Court that you shall first become eligible for parole, 20 December 2024.

• Catchwords: Criminal law - sentencing - murder - manslaughter - causing grievous bodily harm with intent to murder - substantial mental incapacity
• Legislation Cited: Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999
• Cases Cited: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120; R v Daetz and Wilson (2003) 139 A Crim R 398; R v Previtera (1997) 94 A Crim R 76; R v Zaro [2007] NSWSC 756; Veen v The Queen [No 2] (1987-1988) 164 CLR 465
• Category: Sentence
• Parties: REGINA v RENZO DA-PRA
• Representation: Crown: K McKay; Offender: A Francis; Crown: S Kavanagh; Offender: Legal Aid Commission
• File Number(s): 2010/10416

SENTENCE

1 RS HULME J: On 21 May 2012, the Prisoner was convicted by a jury of three offences committed on 18 December 2009:-

1. That he killed Gervasio Da-Pra in circumstances that amounted to manslaughter.

2. That he murdered Emma Wighton.

3. That he caused grievous bodily harm to Vivienne Wighton with intent to murder her.

2 It now falls to me to sentence the Prisoner in respect of these offences. I instruct myself that any findings I make in the course of doing so which are not necessarily implicit in the jury's verdict must be consistent with those verdicts, that any findings which tend to go in aggravation of the Prisoner's criminality must be made beyond reasonable doubt but in the case of any that go in mitigation, it is sufficient if I find them on the balance of probability.

3 There was no dispute in the trial that the Prisoner had committed the physical acts necessarily involved in these offences. In the case of all three offences, the major issues were whether the Prisoner had established the defences of mental illness or substantial impairment by abnormality of mind. In the case of the second and third offences, there was also a subsidiary issue whether they came about as an incident of the Prisoner attempting to create a diversion or alibi in consequence of the first offence.

4 The only evidence as to the circumstances of the death of Gervasio Da-Pra came only from persons such as the police and pathologist who came upon the scenes of events subsequently and from the Prisoner. The latter's account of those circumstances to a psychiatrist, Dr Allnutt, is consistent with what was seen by the others and may be accepted. According to Dr Allnutt, on the morning of 18 December, the Prisoner:-

"... woke up feeling anxious and nervous. He wanted to speak to his father to tell him he had to give the bikies what they wanted. He did not know how to tell his father he was going to die, that the bikies were going to kill him. He decided he needed to tell his father, however, to save his mother and he intended to tell his father that the bikies were coming to the house and if he did not give them what they wanted they would kill him and torture his mother.

He went and spoke to his father; he told him people were going to come to the house demanding his mother. His father did not believe him. He showed his father the knife to prove he was serious. He told him it had to do with Boris and they were coming after the family.

He and his father started arguing. His father was blaming him. His father thought he was organising the extortion. He told his father he had to give him what 'they', the bikies, wanted. At this, his father hit him. He said he reacted. He lost his temper and knocked him out. He believed he had no choice. His father was not going to listen and give the bikies anything. He thought his mother was going to die. He decided he had to kill his father to save his mother. He hit his father in the throat and suffocated him. At the time he was scared for his mother. He did not know what else to do. He had to kill his father to save his mother.

Afterwards he felt scared his mother might find the body, have a heart attack and a nervous breakdown. He put the body in the car and took it to the shopping centre. He left the car there. He thought the police might find the car. He did not want his father to be in the car for too long. He was hoping they would find him. He did not want to kill himself. At the time he thought bikies were coming after him and he needed to kill himself to save family and friends. He thought, if he came to gaol, the bikies would kill him in gaol.

5 Dr Allnutt's account of what the Prisoner had told him in that first interview continued:-

He thought of an alibi, he walked back home, he went to the neighbours and told them his car had broken down and he needed to use their phone. On the way to the neighbours he thought he was being followed. He knocked on the neighbour's door with the intention of making a phone call to his father to establish an alibi. He believed he had to get away, the bikies were coming after him.

As the neighbours let him into the house he noticed that there was a blue car he saw following him and turn into the street. He rushed into the house hoping that they did not see him. He was distressed at having just killed his father and was anxious. He went to the toilet and borrowed a phone. He felt nervous and scared. He was unsure what to say. He said the lady came up and grabbed him. He panicked and reacted. He hit her in the face. The lady and the girl started screaming. He thought the girl pushed him in the back. At the time he thought it was the people from the car who had come to kill him. He grabbed his knife and swung around and lashed out with the knife. He recalled he was slashing. At the time he thought he was slashing people from the car. He was scared for his life. The girl and the mother stopped screaming and he noticed there was blood and realised what he had done.

6 In a later interview with Dr Allnutt, the Prisoner added, inter alia, that:-

He decided to go to the neighbours to ring his father. The neighbours were the first people who came into his head which is why he chose them. He had not really met them before. It was a thought that came straight to his head. He walked to the neighbours. On the way, he was trying to think about what to say. He decided he was going to say his car broke down and he needed to call his father. He thought that by ringing his father this would establish a view that, at the time he rang him, he did not know he was dead. There was nobody at his home who could witness him making the phone call, so he went to the neighbours.

He told Vivienne Wighton that he needed to use a phone to ring his father. She opened the door and he thought he saw the same blue car turning into their street. He panicked and rushed into the house.

...

After he hit Vivienne Wighton, the thought came to his mind to tie them up. He needed to get away. He was scared of getting caught for his father's murder. He was thinking of tying them up and taking money to get away. This was the first time that this thought came to his mind. He needed money to leave the city and get away from the bikies and the police.

7 The pathologist Dr Orde could not determine the precise cause of Gervasio Da-Pra's death, but agreed that it flowed one way or another from pressure that had been applied to the deceased's throat.

8 The neighbour who let the Prisoner into her house was Vivienne Wighton. Her account of what occurred there differs in some respects from that of the Prisoner and although I accept that both she and the Prisoner must have been the subject of great stress at the relevant time, I am satisfied that her account is the more reliable.

9 Her evidence was to the effect that her door bell rang, she went to the front door, the main door was open but the screen door was locked. The Prisoner announced who he was and then wrenched open the screen door, came in, sidled along next to the staircase and moving his fingers as if rolling a cigarette. He was red in the face. Mrs Wighton sidled opposite until they reached the kitchen. There he grabbed her hand, swung her around and started punching her. He punched her twice to the face and she indicated firstly the right side and then the left. In her words, "He finished me off" and she lost consciousness. Phone records in evidence suggest that the attack on Mrs Wighton occurred before 12.15 pm and certainly before 1.30 pm.

10 Much later in the day - the evidence of the paramedics would suggest after 7.00 pm - Mrs Wighton made a 000 call. When the paramedics attended, they found Emma Wighton dead on the floor in the family room near the kitchen and Mrs Wighton in a side doorway between the entrance hall and the loungeroom. Both had had their throats cut, in the case of Emma Wighton, the cut extending through the back of her mouth to the spine. The wound included four shallow "tails" into the adjacent skin suggesting a sawing motion of the implement which caused the injuries. It does not seem to me appropriate to call these cuts slashes and there were no other indications of slashing by the prisoner.

11 Emma Wighton had also suffered extensive bruising to the lips and chin that Dr Orde thought unlikely to have been caused by only one blow. I find there was more than one punch or the like. There was also a fracture of the skull and other bruising in the area that could have had a number of causes including falling to the floor. There was some patterned bruising to the upper chest but the evidence was not sufficient to explain this.

12 A blood spatter expert called by the Crown and whose evidence I accept concluded that Emma Wighton had been supine at the time her throat was cut.

13 Mrs Wighton had also suffered a very extensive cut to her throat from one side to the other. The larynx, and the anterior jugular veins were completely transected and the left internal jugular vein and the vasavesorum of the left carotid artery were partially transected. Dr Chin, who operated on Mrs Wighton, gave high praise to the paramedics and hospital emergency staff for Mrs Wighton's survival.

14 There was a wealth of evidence which was not challenged and which I accept that, for a substantial period prior to the 18 December 2009, the Prisoner had some belief that he and his family were being pursued by someone called "Boris" and a group associated with Boris or bikies. Although there was limited evidence that these beliefs were not justified, there was some, the trial was conducted upon the basis that they were delusions and I accept that they were.

15 I have referred in recounting Dr Allnutt's evidence of what the Prisoner said to him concerning an alibi. The Prisoner gave a number of other accounts as to what had occurred and to which reference should be made. To understand the context of some, it must be mentioned that the Prisoner attended the Emergency Department of the Fairfield Hospital early in the morning of 20 December. There, he pushed a writing pad across the counter asking the recipient to take it to the police. The writing pad smelt as if it had been soaked in petrol. The Prisoner immediately departed.

16 On the pad was written a note. After identifying its author and requesting it be taken to the police, the note commenced, "If your (sic) reading this, I'm obviously dead". In the note the Prisoner referred to the threats to his family that he had perceived and having to kill his father himself. The note proceeded:-

After killing my father, I was looking for a way to create a diversion, so I went to the neighbours, I was intending to only threaten them, but between what I had just done and what I had to do, I lost all control and in the frenzy I become (sic) a person that even I believe should not exist. I did have a choice of saving my mother as, I was going to die, but now my only mission in life is to make it home and end my life to hopefully show how sorry I am for what took place ...

17 In what was obviously a note written earlier but found some time after the Prisoner's arrest, he had referred to the threats to his family:-

"That left me no choice but to do it myself. I met someone in a pub in Milperra which decided would give me a hand. However, while I was cleaning up at my parents', Chuck decided to visit next , and I was unable to prevent innocent people from their fate.

18 The blank in the above passage represents a small section of the note which was destroyed, and which was followed by the letter "r". It seems probable that the word missing is "door". The evidence did not provide any significant guidance as to who "Chuck" may have been but does provide good reason to conclude that no-one but the Prisoner was in fact involved.

19 At about 7.00 am, then seated in a car outside the hospital, the Prisoner set himself alight. It is clear that he had poured petrol over himself before doing so. Police cars were in the immediate vicinity, the fire was extinguished and the Prisoner taken to the hospital. While still on the ground near the car, there was a conversation between Sergeant Barnes and the Prisoner which included the following:-

Sgt Barnes Why did you do it?

Prisoner I didn't mean to.

Sgt Barnes Why did you kill the girl?

Prisoner It wasn't meant to happen like that. After I did my dad, I went over there to get an alibi and things got out of hand. I panicked. Then the knife was in my hand and I just started slashing.

Sgt Barnes Why did you go back there?

Prisoner I didn't go back.

Sgt Barnes What do you mean?

Prisoner After I finished with dad I went over there.

20 In evidence were a number of statements the Prisoner had made to other persons, Dr Tahtouh at Liverpool Hospital on 20 December 2009, Nurse Owens at Long Bay Gaol on 19 February 2010, Dr Goh, a Psychiatric Registrar on 20 February 2010 and later to other psychiatrists.

21 Dr Tahtouh's evidence was that after referring to the incident with his father, the Prisoner went on to say words to the effect that he then decided he needed money and went next door looking for money because he did not have any, the little girl screamed and ran past him and he used the knife on her. Nurse Owens said that in the course of his interview with the Prisoner the latter said he was aware he was charged and then said, "Knock him down, knocked down two. Seriously hurt another". The Prisoner said he moved to live with his parents Christmas 2009 but didn't get along with his father, they fought all the time and that his Dad didn't like or want his dog to stay. The Prisoner ended up having a big fight with his father and the incident happened. The Prisoner went on to say words to the effect that he then decided he needed money and went next door looking for money because he didn't have any. He said the little girl screamed and ran past him and he used the knife on her. He said words to the effect, "Didn't want to kill her and then seriously hurt the other one, the grandma. Didn't want to do it, feels bad".

22 Dr Goh said that after referring to the stabbing of his father, the Prisoner mentioned a girl and said that he thought he would go to the neighbour's house, pretend that a home invasion had occurred there, take money from the house and then leave the city. According to Dr Goh, the Prisoner then said the girl ran past him when he was holding the knife and he was really sorry it happened.

23 Dr Nielssen was the first of the psychiatrists who gave evidence at the trial to whom the Prisoner spoke. According to Dr Nielssen, the Prisoner, after referring to taking his father's body to the shops, said he called on the house and neighbours about 15 minutes later in order to "create an alibi", but that he thought he had been followed to the house having noticed a blue car turn into the street which he believed contained people who were after him. The Prisoner told Dr Nielssen that he pushed his way into the house to avoid being seen. The Prisoner saw Dr Nielssen on 17 March 2011.

24 The next psychiatrist to whom the Prisoner spoke was Dr Allnutt on 23 June 2011 and later on 22 September 2011. I have set out above the significant parts of the Prisoner's account to Dr Allnutt.

25 The Prisoner was also interviewed by Dr Reutens on 8 May 2012 and he gave her a similar account to that which he had given to Dr Allnutt.

26 Combined with the evidence of Mrs Wighton and other soon to be mentioned, these accounts were relied on by the Crown as indicating a degree of rationality on the part of the Prisoner prior to the offences the subject of the second and third counts, rationality that the Crown submitted should lead to the conclusion that at the time of those offences the Prisoner's mental state was such that the mental illness and substantial impairment defences were not established.

27 The further evidence consisted in part of some to the effect that a screen door to the garage of the Prisoner's father had been damaged and a computer normally kept in the garage missing. At Mrs Wighton's, a number of external fly screens were damaged, a mobile phone was stolen and there was quite substantial degree of pulling out of clothes etc. from drawers. I am satisfied that these matters reflected actions of the Prisoner.

28 The three psychiatrists were called, Dr Allnutt by the Crown and Drs Nielssen and Reutens on behalf of the Prisoner. Dr Nielssen and Dr Reutens opined that that the Prisoner was suffering from paranoid schizophrenia at the time of all three offences, saying that this was a disease of the mind, that it led to a defect of reason and in consequence the Prisoner was not able to reason in a calm and logical way and did not know that what he was doing was wrong.

29 Dr Allnutt also said that at the time he killed his father the Prisoner was suffering from a disease of the mind, that this led to a defect of reason and in consequence he was not able to reason about the wrongfulness of his behaviour with a reasonable degree of sense of composure. Because the Prisoner thought that by killing his father, he would save his mother he believed that he was doing no wrong. Dr Allnutt said that the Prisoner's condition was consistent with schizophrenia.

30 In the case of the other two offences, in his first report Dr Allnutt was somewhat ambivalent. However, after interviewing the Prisoner again, Dr Allnutt said that based on the Prisoner's account to him which included being followed to the Wighton residence, Mrs Wighton grabbing the phone and Emma Wighton pushing him from behind, it was reasonable to conclude that he had a defence of mental illness because his disease of the mind caused him to be unable to reason about the matter of the wrongfulness in attacking Emma Wighton with a reasonable degree of sense and composure as a person with a rational mind would. He said that the matter was marginal in the case of Vivienne Wighton.

31 Dr Allnutt was then asked to provide a third report based upon assumptions different from those which he seemed to have chosen as the foundation of his second report. The assumptions newly proposed were:-

1. The Prisoner attended the Wighton house to divert suspicion from himself and by trying to make it appear to be a home invasion.

2. Included in his thinking was to obtain money so he could leave the area and not be arrested in respect of his father.

3. After attacking Mrs and Emma Wighton, he disturbed things in the house to make it appear a home invasion took place.

4. The Prisoner inflicted significant injuries to both victims other than the cutting of their throats, suggestive of the attacks being more than momentary slashing type.

5. The Prisoner did not believe he had been followed to the Wighton residence by persons who had made threats previously, and

6. He did not mistake Emma Wighton for an attacker.

32 Dr Allnutt's conclusions were that if the Prisoner was psychotic at the time he killed his father, then he probably was psychotic at the time of the offences the subject of counts 2 and 3 but that a person with psychosis can reason defectively about one situation and not another and under the scenario postulated, it was unlikely the Prisoner's defect of reason was of a nature and severity that it significantly impaired his capacity to know the nature and consequences of his actions when he attacked both Emma and Vivienne Wighton: Neither of the defences of mental illness and substantial impairment would be available to him.

33 Dr Allnutt went on to postulate three scenarios. The first was that when the Prisoner entered the Wighton residence, he was intending to deal with whoever was there and in that case it was unlikely that the defences of mental illness or substantial impairment were open. The second scenario involved the Prisoner attending the house with the intention of diverting suspicion from himself but with no premeditated intention to attack any occupants, that intention only arising in consequence of something that happened in the house. Dr Allnutt thought that depending upon what happened and the Prisoner's beliefs thereafter, the defences of mental illness and substantial impairment were or might be "raised".

34 The third scenario was "on the same factual basis (but the Prisoner's) underlying motive was seeking to avoid further harm to his family by others and (he) thought he would be killed in gaol ... due to delusional beliefs". In that situation, the defences of mental illness and substantial impairment were "less applicable" but, one may infer, still possible.

35 In what I have just said I have summarised Dr Allnutt's conclusions as best I can. I confess I found much of his evidence in this case and, in particular, that relating to the three scenarios among the least understandable of any evidence from psychiatrists I have ever heard. It was made no more comprehensible by the fact that the Crown Prosecutor led Dr Allnutt through lengthy reports he had written with little attempt to avoid a large degree of repetition or to provide clear identification of the significance of particular aspects of the evidence.

36 In this case the requirement that any findings I make be consistent with the jury's verdict has a particular significance because, as is apparent from what I said during my summing up, I think that the jury's verdict on count 1, at least, is wrong. (I should make it clear that that remark is not to be taken as a criticism of the jury system generally. I am a strong proponent of it. Judges also make mistakes.)

37 But be that as it may, I must sentence the Prisoner in accordance with the verdicts. I am however entitled to take into account my own view of the Prisoner's mental state insofar as that view is not inconsistent with the verdicts. I have set out above the unanimous opinion of the psychiatrists so far as the first count is concerned and which, at least in part, the jury must have rejected. It seems to me that if that opinion is not to be accepted, the most likely element not present is that the Prisoner did not know that what he was doing was wrong. By so expressing the matter, I do not mean to suggest that I should be seeking to divine what the jury was thinking. It is a case of making up my own mind and I find it impossible to conclude that the psychiatrists were all wrong in their diagnosis that the Prisoner was suffering from a disease of the mind leading to a defect of reason.

38 Evidence from the psychiatrists to the effect that the Prisoner appreciated the nature and quality of his physical act leads me to the view that, within the principles of substantial impairment, the Prisoner's capacity to understand events was not substantially impaired. However, I am satisfied that his capacity to judge whether his actions in the killing of his father were right or wrong was substantially impaired in circumstances contemplated by those principles. Indeed, when I have regard to the totality of the evidence, I am satisfied that the Prisoner's capacity in the respects mentioned was very greatly impaired.

39 Furthermore, although the psychiatrists did not say so, I also incline to the view that the Prisoner's capacity to control himself at the time of killing his father was also substantially impaired by his abnormality of mind.

40 If as the jury has found, the Prisoner was not, as the law defines it, mentally ill at the times of his attacks on Emma and Mrs Wighton, the matters I have mentioned argue for the same conclusion as to the Prisoner's capacity at the time of the offences against these two. However, the jury's verdicts preclude an identical finding.

41 In the case of Emma and Mrs Wighton, it is necessary that I address the issue of the Prisoner's attendance at the Wighton residence. I should say immediately that given the lack of precision in Dr Allnutt's evidence, I do not regard it as necessarily implicit in the jury's verdicts on counts 2 and 3 that the Prisoner had an intention to attack the occupants of the Wighton residence prior to Mrs Wighton's attendance at the front door. Indeed I do not regard the jury's verdicts as determinative of any individual one of what I may call the subsidiary evidentiary matters such as those set out in [31] above. I feel free to reach my own conclusions on those matters.

42 Statements in the note the Prisoner handed to staff at the Emergency Department of Fairfield Hospital and to Sergeant Barnes were both made at a time and in circumstances where deliberate fabrication was so unlikely that the possibility may be discarded. Both lead inevitably to the conclusion that his attendance at the Wighton premises was deliberate.

43 Why he went is by no means as clear. In the note he said he was looking to create a diversion and was intending to only threaten. To Sergeant Barnes he mentioned it was to get an alibi. How, even in the warped or irrational state of mind the Prisoner must have been in at the time he could have thought that threatening the neighbours could have helped him is impossible to understand. Nor can one readily see how attacking or killing them could have created a diversion that any rational mind could have thought would have been of any possible benefit. When one adds to these considerations the fact that, prior to that day, the Prisoner had lived for some 45 years and, as the evidence showed, never exhibited or threatened violence, I find it impossible to believe that the Prisoner attended the Wighton residence with any premeditated intention to attack or kill.

44 At least in concept, obtaining an alibi does have a degree of rationality about it, although the same cannot be said for the alibi attempt contemplated. His later statement to Dr Allnut that he was going to say his car broke down and he needed to call his father because this would establish that at the time he rang he did not know his father was dead would be of limited use unless accompanied by a further statement that he had gone to his father's place next door but could not make contact or some explanation as to why he had not gone there. Furthermore, the fact that, according to his mother's statement, the front door was unlocked when she arrived home at about 11.50 to 12 o'clock was liable to complicate some such alibis.

45 Absent some premeditated intention to attack whoever happened to be in the Wighton residence, the most likely explanation for Prisoner's wrenching open of the screen door seems to be that he believed that he was being followed and wished to get inside before being seen by those he believed to be following although the fact that the first time he mentioned being followed or a blue car was when he saw Dr Nielssen on 17 March 2011 gives the suggestion appreciably less weight than if these matters had been mentioned earlier.

46 His sidling down the hallway with his back to the staircase, the side of which was filled in, is strongly suggestive of wariness or fear but it is difficult to see any logic in his attack on Mrs Wighton as soon as they reached the kitchen unless his idea of a "diversion" included attacking or killing anyone who happened to be in the house at the time he want there. Obviously the fact of that attack occurring as soon as it did raises the question whether it was premeditated but even after bringing it into the equation, I still cannot see how he could have thought before arriving at the Wighton premises that an attack on its occupants would have been of any benefit.

47 His cutting the throats of Mrs Wighton and Emma might have been a response to a recognition that after he attacked Mrs Wighton he was in serious trouble, but otherwise these actions seem to have no logical explanation unless the Prisoner felt under attack himself. The nature of those actions is also so awful that it argues, particularly in light of the Prisoner's non-violent past, for something having gone badly awry in his mental processes.

48 I do not forget the signs of a home invasion of some sort, signs I am satisfied were left by the Prisoner. At least some of the emptying of drawers may have been in the search for money but the damage to the flyscreens outside seems definitely to be a pretence. There was clearly some rationality, even if imperfect, in these actions. But even taking these matters into account I remain persuaded that the Prisoner's attacks on Mrs Wighton and Emma were not premeditated and reflected some substantial mental aberration. It may be that that was contributed to by the psychotic state which, according to Dr Allnutt, would have continued after the killing of his father. It may be that it was contributed to by some belief, perhaps provoked by Emma running past or otherwise responding to the attack on Mrs Wighton, of he himself being attacked by those involved in his delusions but we will never know and in any event I do not need to decide.

49 I should record also that I do not ignore the Prisoner's other explanations such as seeking to obtain money for his attendance on the Wighton premises, whether he had such intentions before going there I do not know but in any event I am satisfied they provide no rational or logical explanation for his attack on Emma and Mrs Wighton and I am certainly not persuaded they were his motivation for those attacks. So far as the issues arising in the mental illness defence are concerned, I am satisfied that at the time the Prisoner had a defect of reason arising from a disease of the mind. Those conclusions mean that I am precluded from finding that he either did not appreciate the nature and quality of his acts or know they were wrong.

50 So far as the substantial impairment defence is concerned, I am satisfied that at the time of his attacks on Mrs Wighton and Emma, the Prisoner's capacity to judge whether his actions were right or wrong and to control himself was substantially impaired by an abnormality of mind arising from an underlying condition. The combination of these findings and the jury's verdict forces me to the conclusion that the degree of impairment was not so substantial as to warrant liability for murder being reduced to manslaughter. So expressed of course, my view does not relate directly to the attempted murder of Mrs Wighton to which the defence of substantial impairment cannot, by law, apply.

51 Subject to those reservations, I am both entitled and obliged to take into account in sentencing the Prisoner his mental state as I have found it to be.

52 Section 21A of the Crimes (Sentencing Procedure) Act 1999 requires that in determining the appropriate sentence for an offence the Court take into account a number of aggravating and mitigating features if they are known to the court. The Crown submitted that there were a number of aggravating features in this case, viz:-

(i) The extent of violence involved in the three offences.

(ii) The nature of the weapon used on Emma and Vivienne Wighton.

(iii) That the offences against them occurred against the victims in their home.

(iv) Gratuitous cruelty, particularly the patterned injury on Emma Wighton.

(v) The injury, emotional harm and loss involved in all offences was substantial.

(vi) The offences against Emma and Vivienne Wighton involved some planning.

(vii) The offences against Emma and Vivienne Wighton were committed, in part, for financial gain.

53 I have dealt sufficiently with the extent of violence in the murders themselves and in the attack on Mrs Wighton. Obviously, nearly all murders involve some violence. Clearly, the injury, emotional harm and loss involved in all offences was substantial and the offences did occur in the victims' homes. It certainly appears that in addition to the knife cuts, both victims were also subjected to a number of blows, probably with a fist but it seems not unlikely that those blows were for the purposes of subduing the victims. The particular object that caused the patterned injury to which reference was made was not identified but I am not disposed to find, certainly beyond reasonable doubt, that there was gratuitous cruelty. It follows from what I have said above that I do not regard there as having been any relevant planning of the offences and I am not satisfied that the offences were committed for financial gain.

54 In return, Ms Francis drew attention to a number of mitigating factors. Some are referred to above. I turn to others and some subjective matters that seem to me of significance. Prior to the commission of the subject offences the Prisoner, who was born in February 1964, had no criminal record. Numerous witnesses said that he had never been violent or threatened violence in the past. There was no evidence to the contrary and accordingly I accept this testimony.

55 For some years prior to the offence the Prisoner had been on a disability pension following a bike accident. For some of that time he had been living at a property his parents had owned in Queensland. Over a period of about 5 years the Prisoner worked part time as an employee in a window tinting business. His employer in that business, Mr Cramp, gave evidence in the trial and said that one couldn't ask for a better employee. In a reference tendered in the sentencing proceedings Mr Cramp said that the Prisoner was always punctual, reliable, energetic, a true tradesman, honest and respectful. I accept this evidence.

56 Given, inter alia, the terms of the Prisoner's note handed to the Emergency Department and his attempt at suicide, there can be no doubt that the Prisoner is deeply sorry for his offences. Given these matters and the Prisoner's general attitude and conduct prior to 18 December 2009 and after his arrest but subject to two qualifications, there is in my view no reasonable possibility of his re-offending. The first qualification is that the Prisoner remain on anti-psychotic medication as long as treating psychiatrists require. Dr White, a psychiatrist at MRRC whose report was tendered on sentence indicates that the Prisoner should remain on this indefinitely and probably for the rest of his life. In prison, the Prisoner has always been compliant in this regard and polite and co-operative. Given his life prior to 18 December 2009, it seems to me likely that he will remain so.

57 The second qualification is that the Prisoner remain abstinent from alcohol, marijuana and other drugs. Dr Nielssen gave evidence which I accept that the most probable cause of the onset of the Prisoner's psychosis was his chronic cannabis use. (I may perhaps add by way of aside that this evidence accords with a deal that I have heard or read in other cases. I do not recollect schizophrenia and the resulting horrendous consequences such as occurred in this case being addressed in the recent advocacy of the legalisation or decriminalisation of this drug.)

58 The Prisoner's self-immolation merits further mention. Ms Francis referred to it as demonstrative of remorse but it has a wider significance. It is clear law that in determining a sentence, a court should take into account any extra curial punishment which an offender has suffered in consequence of his offence - R v Daetz and Wilson (2003) 139 A Crim R 398 at [62]. In this case, although the "punishment" was inflicted by the Prisoner upon himself, it is so connected with his offending that it should be counted. Although the evidence was by no means as complete as it might have been if defence counsel had adverted to the significance of the topic it appears that his burns delayed the Prisoner's arrival at Long Bay until 19 February 2010. The injuries he suffered included partial to full thickness burns of his entire face and head, partial thickness burns to the rear of his neck, full thickness burns to both hands affecting all digits and up to the wrists, partial thickness burns to both legs as well as a small burst blister on his left buttock. Observation of him in Court makes it apparent that he has suffered significant disfigurement. One may take judicial notice of the fact that the injuries would have been accompanied by very severe pain.

59 Lest it be thought they have been forgotten, I mention some other matters to which counsel referred. Section 22A of the Crimes (Sentencing Procedure) Act provides that the Court may impose a lesser penalty when the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise). During the trial, the only substantial issues were those of mental illness and substantial impairment and matters incidental thereto. Section 23 provides that the Court may impose a lesser penalty than otherwise if an offender has assisted in the investigation of an offence. Clearly, the Prisoner did so by his admissions.

60 I see no basis in this case for a finding of special circumstances except for the fact of accumulation of sentences that must occur but that accumulation clearly justifies such a finding.

61 I record also that during the sentencing hearing there were read Victim Impact Statements by Jeremy Decker, the brother of Emma Wighton and by Vivienne Wighton. In the main, that last-mentioned statement related to the death of Emma, though also touched upon what had happened to Mrs Wighton herself. In accordance with the decision of Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76 and the numerous cases that have followed it, there are significant limits to which statements relating to a murder victim can be put but the statements do go to bring home the terrible impact which the offences committed by the Prisoner have, not only on primary victims, but also on family members.

62 The maximum penalty provided for in the Crimes Act for murder is life imprisonment. The maximum penalty provided for manslaughter and for causing grievous bodily harm with intent to murder is in both cases imprisonment for 25 years. Section 54A et seq. of the Crimes (Sentencing Procedure) Act provides a standard non-parole period for the murder of a child under 18 of 25 years, and for causing grievous bodily harm with intent to murder of 10 years. Such periods are to be set unless the court determines upon a different period on grounds referred to in s 21A of the Crimes (Sentencing Procedure) Act.

63 Section 61 of that last mentioned Act provides that:-

(1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.

64 The Crown submitted that it was open to me to find that the murder of Emma Wighton fulfilled the requirements of this section but in light of the findings I have made above, it clearly is not.

65 The purposes for which a Court may impose a sentence are set out in s 3A of the Crimes (Sentencing Procedure) Act but it is sufficient for present purposes if I use the formulation in Veen v The Queen [No 2] (1987-1988) 164 CLR 465 at 476 - "protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform". Relevant also in this case is the fact that the Prisoner's offending was in large part a consequence of his abnormal mental state. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [53]-[54] a majority of the High Court recently said (omitting most references):-

One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this - R v Mooney (Unreported, Victorian Court of Criminal Appeal, 21 June 1978 at 5); cited in R v Anderson [1981] Vic Rp 17; [1981] VR 155 at 160.

"General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others."

In the same case, Lush J explained the reason for the principle in this way:

"[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community."

The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.

66 Obviously the situation of the Prisoner is not on all fours with those of whom the High Court was speaking but there are many similarities. A significant reduction in mental capacity both reduces the moral culpability of an offender and renders him largely inappropriate as an example for general deterrence. It may lead to the view also that little punishment is needed by way of personal deterrence; conversely, it may in an appropriate case lead to greater weight being given to the protection of the community. It may also make an offender's time in prison more burdensome although I have seen nothing to suggest that that will be so in this case.

67 In the case of the Prisoner, because of my assessment of him and what I see as to the significance of his schizophrenia, I think that general deterrence should be given little weight. (The High Court in Muldrock v The Queen was content to accept the trial judge's view that general deterrence had no weight.) For the same reasons, and because the Prisoner's self-immolation is the clearest possible evidence of his remorse, I take the same view of personal deterrence. I do not think that any further substantial time in custody will further the Prisoner's reform or rehabilitation and I do not see that the protection of the community requires he be kept there longer than for his treating doctors to be satisfied that he will continue to take his medications and abstain from illegal drugs and alcohol. In his case it is only retribution that justifies any further substantial time in custody. It may well be that in light of these remarks, the sentences I intend to impose are too harsh but I feel constrained by past sentencing patterns, and more particularly the sentences reflected in those patterns, to not be more lenient.

68 Under principles of sentencing established now for well over a century, maximum penalties are only imposed in circumstances that can be regarded as falling within a "worst case" and a judge is required to make some assessment where in a scale a particular offence falls. To the layman, particularly in the case of murder where, by definition, the victim has died it may seem strange that the law differentiates one such offence from another but experience shows that there are large differences between offences of murder. Premeditation, the infliction of suffering going beyond that necessarily involved in the offence and whether there was an intent to kill rather than merely inflict grievous bodily harm are but three of the myriad of factors that go to differentiate one case of murder from another. Nothing the Court can do can bring back the life that has been lost but for many decades now the law has ceased to require a life for a life, or to say that all murderers should be imprisoned for the rest of their lives.

69 As Howie J eloquently expressed it in R v Zaro [2007] NSWSC 756:-

50 The sentencing of a murderer such as the offender can never settle the score as it were. One often hears complaints that the sentence did not represent the value of the life of the deceased. But it never can. How does one value the life of a young man in the eyes of his family and friends? Retribution is only one of the many aspects of punishment even though it is a very significant one when the court is dealing with an offence where a human life has been taken. The Court understands and sympathises with the loss occasioned to the deceased's friends and family. But it cannot hope to replicate that in the punishment it inflicts on another young man and does not attempt to do so. I cannot impose a longer sentence because of the effect on others of the death of the deceased.

51 I can only ask those who grieve for the deceased to understand that the Court does not set out to destroy another young life in retaliation for what he has done even though it was a heartless, wicked and selfish act. I am conscious that however long the offender spends in prison he will still be able eventually to grow old in the community amongst his family and friends, an experience denied by him to the deceased. The Court can only endeavour to ensure that when he is released he can repay some of his debt by being then a worthwhile member of the community.

70 I turn then to the sentences that should be imposed. There is no clear tariff for manslaughter offences, particularly those committed under the influence of an abnormality of mind. It is implicit in the expressions "substantially impaired" and "impairment ... so substantial as to warrant liability for murder being reduced to manslaughter" that there will be variations of degree. Some impairment may be gross, some may only just fall within the description of "substantial" so as to warrant the reduction. What I have said demonstrates that the Prisoner's abnormality of mind was very high on the scale. There are, of course, also the other factors to which I have referred to be taken into account.

71 The sentence for the manslaughter of Gervasio Da-Pra should be for a total term of 6 years including a non-parole period of 4 years and 6 months.

72 I am, of course, well aware of the Judicial Commission Sentencing Statistics for murder and for the offence against Emma. I have referred to the terms of s 54A et seq of the Crimes (Sentencing Procedure) Act. What I have said makes clear that there are reasons for setting non-parole periods that are shorter than the standard non-parole periods for these offences. Bearing in mind the significance of his schizophrenia to the Prisoner's offending, the sentence for the murder of Emma Wighton should also be substantially less than it would otherwise have been, particularly as there is nothing to suggest that prior to his offending the Prisoner ever consciously realised the mental state he was in or what his drug taking might lead to. His self-immolation argues for further reduction. Both of these matters are encompassed within s 21A(1). The sentence for the murder of Emma Wighton should be of imprisonment for a total of 15 years including a non-parole period of 10 years.

73 Bearing in mind the difference in maximum penalties provided the sentence for causing grievous bodily harm to Vivienne Wighton with intent to murder her should be for a total of 6 years and include a non-parole period of 4 years and 6 months.

74 The severity of a sentence of imprisonment is not simply proportional to its length. Given the likely impact on an offender's life, imprisonment for 10 years is more than twice as severe as imprisonment for 5 years. Furthermore, the principle of totality requires that the sentences I have announced be not simply added but be made at least partly concurrent. In totality they will involve a non-parole period of 15 years. The result of the orders I make are as follows:-

(i) For the manslaughter of Gervasio Da-Pra, I sentence you to imprisonment for a non-parole period of 4 years and 6 months commencing on 20 December 2009 together with a balance of term of 1 year and 6 months commencing on 20 June 2014;

(ii) For causing grievous bodily harm to Vivienne Wighton with intent to murder her, I sentence you to imprisonment for a non-parole period of 4 years and 6 months commencing on 20 December 2012 together with a balance of term of 1 year and 6 months commencing on 20 June 2017;

(iii) For the murder of Emma Wighton, I sentence you to imprisonment for a non-parole period of 10 years commencing on 20 December 2014 together with a balance of term of 5 years commencing on 20 December 2024;

(iv) I record as the date upon which it appears to the Court that you shall first become eligible for parole, 20 December 2024.

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Decision last updated: 04 June 2012