Supreme Court New South Wales

• Medium Neutral Citation: R v McKnight (No. 4) [2014] NSWSC 1029
• Hearing dates: 18 July 2014
• Decision date: 31 July 2014
• Jurisdiction: Common Law - Criminal
• Before: Campbell J

Decision

Offender sentenced to a term of imprisonment having a non-parole period of 6 years commencing 3rd April 2012 and expiring on 2nd April 2018 with an additional term of 2 years commencing on 3rd April 2018 and expiring on 2nd April 2020. The first date upon which the offender will be eligible for release on parole is 3rd April 2018.

• Catchwords: CRIMINAL LAW - Sentencing - manslaughter by substantial impairment - alcohol fuelled violence in public place - interplay of Loveridge and Muldrock principles in case of mental illness
• Legislation Cited: Crimes Act, 1900 (NSW)
• Cases Cited: Chung v The Queen [2001] HCA 67; (2001) 209 CLR 1; Efthimiadis v R [2013] NSWCCA 276; Muldrock v the Queen [2011] HCA 39; 244 CLR 120; R v Cardoso [2003] NSWCCA 15; R v Engbert (1995) 84 A Crim R 67; R v Johnson [2003] NSWCCA 129; R v Loveridge [2014] NSWCCA 120; R v MD [2005] NSWCCA 342; 156 A CrimR 372; R v Mooney (unreported, Court of Criminal Appeal (Vic), 21 June 1978); R v Ray [2003] NSWCCA 227; 57 NSWLR 616; R v Windle [2012] NSWCCA 222
• Category: Sentence
• Parties: Regina (Crown); Michael McKnight (Accused)
• Representation: Counsel: J Pickering SC (Crown); G Brady (Accused); Solicitors: Solicitor for Public Prosecutions (Crown); Nyman Gibson Stewart (Accused)
• File Number(s): 2012/104525

Judgment

1 By majority verdict delivered on 8th May 2014, the Jury found the offender not guilty of the murder of Stafford David Ray, but guilty of manslaughter.

2 The principles of law governing the sentencing of an offender who has been found guilty by the verdict of a jury are well known and require no exposition by me (See for example Chung v The Queen [2001] HCA 67; (2001) 209 CLR 1). It is my responsibility to determine the appropriate sentence. And it is for me to make a decision as to the degree of culpability, and about all other facts relevant to sentencing. Determining the question of culpability requires me to identify why the offender is guilty.

3 There were two real issues in the case. The first was whether when he assaulted Mr Ray, the offender intended to seriously injure him. If not he was not guilty of murder but guilty of manslaughter because of his plea. The second was whether the offender was entitled to have any criminal liability for murder reduced to manslaughter by reason of the defence of substantial impairment by an abnormality of the mind. The Crown, of course, bore the burden of proving the requisite intent beyond reasonable doubt. But the offender carried the burden of making good the defence if it arose on the balance of probabilities.

4 I am satisfied beyond reasonable doubt that when he assaulted Mr Ray the offender intended to inflict really serious personal injury. I am also satisfied on the balance of probabilities that the accused has made good his defence of substantial impairment.

Circumstances of the assault

5 The offender's assault upon Mr Ray happened in the very early hours of the 25th of March 2012 near the corner of George and Goulburn Streets in the City of Sydney. The assault was captured on public CCTV cameras. A compilation of the various recordings, depicting what happened more or less continuously, was tendered at the Trial and in my judgment represents the best, most reliable evidence of what happened.

6 Mr Ray was sitting on the footpath of George Street with his back leaning against the wall of a shop. He was with a friend named Sarah Mathieson. When first depicted, the offender is seen standing near the corner, perhaps speaking to Mr Ray. While I cannot be definitive, he appears intoxicated. There is no issue that he had been drinking heavily earlier that night at the greyhound races, and later at licensed premises in the city, a total period of about 5 hours. He had also smoked "several cones of cannabis" earlier in the day before going out.

7 According to Ms Mathieson's evidence, not all of which I found reliable because much of it was inconsistent with what is depicted on the CCTV footage, the offender sat down beside her and Mr Ray.

8 The CCTV footage then shows the offender getting to his feet quickly and kicking Mr Ray a number of times very forcibly about the head and chest area. I am satisfied beyond reasonable doubt that there were at least three kicks, as depicted on the CCTV footage. There may have been more, but I am unable to so find. The precise number does not matter a great deal. The CCTV footage clearly shows Mr Ray's head moving back fast against the wall in response to the kicking.

9 The offender then left the scene of the attack, going towards another bar closer to central station, where he was refused admission. The doorman who gave evidence said he was behaving strangely and appeared affected by alcohol. One of Mr. Ray's associate's told the security guard what had happened and the latter chased the offender and apprehended him. Police officers patrolling George Street spotted the security guard holding the offender on the ground and stopped. They received a report of the assault upon Mr Ray and arrested the offender. When asked for an explanation he said that Mr Ray had stolen $250 from him. This was not correct. But the question of the offender's belief in that matter assumes some significance in the evidence because of his psychotic mental illness. Whilst the police were talking to the offender ambulance officers called by them arrived and attended to Mr Ray.

Mr Ray's condition

10 Mr Ray did not lose consciousness in the assault. He was able to tell the ambulance officer "I've been assaulted and kicked in the head". The ambulance officer noticed, however, that his speech was slurred, but was unsure whether that was because of the alcohol he smelt or a head injury. On examination, he noticed a large haematoma on the right side of Mr Ray's head towards the back. The ambulance officer became concerned about the possibility of a head injury and asked Mr Ray to come to the ambulance where the light was better. Mr Ray was able to stand up on his own and walk to the ambulance. The ambulance officer's paramedical observations were within normal limits. The ambulance officer suggested that Mr Ray accompany him to the hospital to undergo more detailed examination and he agreed.

11 Before Mr Ray left for the hospital he spoke with one of the police officers, and complained of being kicked. Mr Ray was unsure whether he wanted charges brought against the offender. He wanted time to think about it. In these circumstances, the police officers released the offender. When spoken to again by the police officers at the hospital, Mr Ray was still unsure of what he wanted to do.

12 I am providing seemingly peripheral detail because the series of events which led to Mr Ray's death were in a sense quite unexpected. I hasten to point out, however, that the accused, quite properly, accepts that his acts were the legal cause of Mr Ray's death.

13 Dr Issabella Brouwer, a specialist forensic pathologist, gave evidence relating to the autopsy conducted by her. She described external injuries to Mr Ray's face, head and upper right arm, which were consistent with the consequences of being kicked. But most significantly, she found a subdural haemorrhage to the left side of the brain, a significant traumatic brain injury. She said the usual mechanism of injury was an acceleration/ deceleration injury to the head and the brain within the skull cavity. She had viewed the CCTV footage and described two kicks to the left side of Mr Ray's head resulting in his head moving uncontrollably backwards and forwards and impacting against the brick wall. She said those events had all of the elements that are ideal for the development of a subdural haemorrhage (118.15T). It does not matter that the external injury was to the right side of the head. Mr Ray also had evidence of brain atrophy probably due to alcohol abuse which would have provided more space for movement of the brain within the skull making it easier for the haemorrhage to occur.

14 What caused Mr Ray's death was the accumulation of blood from the haemorrhage occupying the space within the skull raising pressure on the brain. That pressure on the brain, untreated, eventually causes death. But a person who suffers such an injury may appear fine over a period of time before developing symptoms of raised intracranial pressure leading to loss of consciousness and death (119.30T). Dr. Brouwer also said that a subdural haemorrhage is readily diagnosable on a CT Scan. Death is not inevitable, but a patient's survival depends upon how soon a diagnosis is made to allow for prompt medical intervention. Absent a CT scan the clinical signs of this type of brain injury may be confused with severe intoxication. An intoxicated person may be unaware of having suffered a head injury, go to sleep and "literally" die in his sleep. There is no doubt that Mr Ray was heavily intoxicated. At the time of his death, his blood alcohol reading was 0.248, and he did not die until some hours after the assault.

What happened at the hospital

15 When they arrived at the hospital there was a long backlog of waiting ambulances and the ambulance officers had to stay with Mr Ray for about an hour. He remained conscious at all times. He was allocated a bed at about 2:50 am before the ambulance officers departed.

16 Mr Ray was triaged by a qualified nursing sister who recognised the possibility of traumatic brain injury. Of course, not everyone can be seen at once and Mr Ray was not assessed as in the most urgent group. As I understand the evidence, he was placed in the second order of priority. It was a very busy night but once examined by a doctor, doubtless, a CT scan would have been arranged.

17 He was also examined by an experienced registered nurse at 2:30 a.m. and again at 3:30 a.m. She was aware that he might have suffered a head injury because she administered the Glasgow Coma Scale on each occasion. On the second occasion, Mr Ray was combative and non-compliant. This may have been due in part to his head injury. He refused to remain in the bed and was allowed to sit in the emergency department waiting room which he apparently preferred. At that time he was still on the waiting list for a CT scan.

18 Some time after 3:30 am, Mr Ray decided to leave the hospital. He was still wearing his hospital ID bracelet and the hospital's "sats probe" was still in situ. He must have layed down in Green Park near the hospital under a tree where he was found at about 2:30 p.m. that day. I have no doubt that he died in his sleep some hours earlier in accordance with the mechanism described by Dr. Brouwer.

19 Mr Ray died from effects of the head injury inflicted by the offender. The treatment he received at the hospital is not in issue in this case. It simply forms part of the narrative of fact surrounding Mr Ray's death. There is no evidence from which I could adjudge its adequacy and it is not relevant to any issue in the case for me to attempt to do so.

Finding about intention

20 There can be no doubt that the traumatic brain injury by way of subdural haematoma suffered by Mr Ray was a really serious injury. But that is not the point; the question is, did the offender mean to really seriously injure Mr Ray. I bear in mind that a person's intention can only really be proved by circumstantial evidence. And that to be satisfied beyond reasonable doubt, I must conclude that an intention to inflict really serious personal injury is the only rational inference I can draw from all the circumstances established by the evidence. Moreover, the offender's obvious level of intoxication is relevant. It is necessary for the Crown to satisfy me beyond reasonable doubt that despite his intoxication, the offender intended to inflict really serious injury on Mr Ray.

21 In his own mind, the offender had a reason to harm Mr Ray. He thought he had stolen from him. His attack on Mr Ray was in retaliation for that perceived wrong. As depicted on the CCTV the attack is one of some ferocity involving a series of forceful kicks during which Mr Ray's head was forced back into the wall.

22 It is not necessary to find that the offender intended to inflict the traumatic brain injury from which Mr Ray would die. But I am satisfied beyond reasonable doubt that he had the specific intent of inflicting really serious personally injury of some kind when he kicked Mr Ray. I am satisfied that is the only rational inference available from the nature of the assault, the offender's intent to retaliate for a perceived wrong, and the evidence that he heard a voice say "Get him, get him."

Substantial impairment

23 I turn then to the second issue, whether the offender has made out the partial defence of substantial impairment.

24 My finding that the offender kicked Mr Ray intending to really seriously injure him is in substance a finding that the offender was guilty of murdering Mr Ray subject only to this partial defence reducing his criminal liability from murder to manslaughter. As intent and substantial impairment were the only issues put before the jury for determination, it follows if I am to find facts consistent only with their verdict, that the defence of substantial impairment succeeds. For no other matter reducing murder to manslaughter arises on the evidence lead in this case.

25 Even so, it is appropriate that I set out my findings about substantial impairment. The same facts are also relevant to other aspects of sentencing.

26 The partial defence of substantial impairment is established if the accused proves on the balance of probabilities the following matters:

(a) At the time he kicked Mr Ray, his capacity to understand events, or to judge whether his actions were right or wrong, or to control himself, was substantially impaired by an abnormality of mind arising from a pre-existing mental or physiological condition; and

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

27 The first element is simply a question of fact. I am comfortably satisfied on the evidence that it has been made out. I have had the benefit of evidence from two experienced forensic psychiatrists, Dr. Olav Nielssen, qualified on behalf of the offender, and Dr. Stephen Allnutt, qualified on behalf of the Crown. Both doctors diagnosed the offender as suffering from schizophrenia. Dr. Nielssen referred to it as a chronic schizophrenia. As I understand Dr. Allnutt's evidence, although there are possible differential diagnoses, on balance he would describe the offender's disease as a paranoid schizophrenia or a schizo-effective disorder.

28 These diagnoses are not based upon a single medico-legal examination. From the other evidence consisting of what was referred to as the longitudinal history, and his subsequent treatment by Justice Health whilst in custody, it is, with the benefit of hindsight, clear that the offender has suffered from this disease for many years.

29 The documented history starts when he was 17 and he attempted suicide with an overdose of Temazepam tablets he had been prescribed for depression. At the time, along with depression, he felt like he did not fit in, and that he had lost his personality. There is no history of delusions or perceptual disturbance then, but his affect was incongruent to his mood. He gave a history of smoking cannabis. He was transferred to Rozelle Hospital from Canterbury and the differential diagnosis of adjustment disorder with depressed mood and drug-induced psychosis with schizophrenic form was made.

30 He was readmitted to Rozelle Hospital in February 2007. He had been threatening to kill people by stabbing them and was threatening self-harm. On mental state examination, he was found to have grandiose, delusional thinking. His mood was elevated but he was guarded and paranoid. He believed he was special and could communicate with God who sent him messages. At that time the diagnosis of a drug induced manic episode was made and he was treated with anti-psychotic medication.

31 He received treatment for some months during the first half of 2007. He was non-compliant with medication and he continued to use cannabis. Further treatment occurred during 2010.

32 He gave evidence during the proceedings on sentence that at the time of this offending he was not compliant with his antipsychotic medication. He told Dr. Nielssen that when he was not taking it he was hearing voices telling him what to do including to kill himself.

33 Dr Allnutt's history was somewhat more detailed. The voices had commenced at the age of 17, initially as a mumbling sound which became clearer over the time. The voices instructed him to self-harm and told him to do other things.

34 He told both doctors that when he was sitting talking to Mr Ray he formed the belief that Mr Ray had taken $200 from his pocket. He heard the voice saying "Get him, get him" just before the assault.

35 I am satisfied that the offender's belief that Mr Ray had stolen from him was entirely erroneous. There was no evidence of Mr Ray having a sum as large as $200 on him when his body was recovered, and he had no opportunity either to spend it or bank it.

36 Dr Nielssen and Dr Allnutt differ about whether that erroneous belief is a delusion. Put simply, Dr. Allnutt thought it was insufficiently bizarre to qualify. One may wrongly believe something without irrationality. Objective irrationality forms part of his definition of delusion. Dr Nielssen thought it was a delusion. He proffered the definition of false belief in which the patient persists notwithstanding that it is shown to be clearly wrong. I accept Dr Nielssen's evidence about this. Largely because his is a workable, understandable definition of delusion. Dr Allnutt's approach, with great respect, is too subjective to be workable.

37 I accept the evidence of Dr Allnutt that persons who suffer from schizophrenic pychosis, who go off their medication will become acutely unwell again.

38 Dr Allnutt expressed the view (at 247.40T) that if the offender was paranoid and experiencing auditory hallucinations urging him to "get" Mr Ray, then it is reasonable to conclude that the underlying condition of schizophrenia was an abnormality of mind that impaired his capacity to understand events at the time of the offending.

39 Since his arrest the offender has been receiving treatment from Justice Health in prison who also diagnosed schizophrenia and have treated him with antipsychotic medication. He has been compliant with the medication and his condition has improved since about July 2012. By the end of 2012 he was not experiencing visual or auditory hallucinations, although he stated he was having poor sleep. By February 2014, the diagnosis was schizophrenia with symptoms controlled with medication.

40 I accept the evidence that the offender has suffered from schizophrenia for many years and that during the years leading up to his offending and arrest, he was non-compliant with his medication and was subject to acute symptoms, including delusions and auditory hallucinations. I accept that he formed an irrational belief that Mr Ray had stolen from him on 25th March 2012 and that he kicked him in response to voices he heard telling him to "get him".

41 From this evidence, I find on the balance of probabilities that at the time he kicked Mr Ray the accused's capacity: to understand the events; for moral judgment; and for self control, were substantially impaired by an abnormality of the mind arising from his pre-existing disease of schizophrenia.

42 The next question is whether the offender's impairment was so substantial as to warrant liability for murder being reduced to manslaughter. Again, I observe that the Jury's verdict of not guilty of murder but guilty of manslaughter admits of only one answer to this question. But, I bear in mind that at the time of his offending, the offender was in a state of self-induced intoxication and that I am to disregard its effects for the purpose of answering this question.

43 Answering this question involves the making of a value judgment. The question is whether legal responsibility for the most serious crime of murder should be attributed to the offender. Central, but not necessarily decisive, is whether the impairment is substantial enough to justify the reduction in criminal liability. All the circumstances of the case need to be considered. Part of the rationale underlying the defence, is that frequently, but not always, the criminal acts of the mentally ill justify less severe punishment than the criminal acts of persons of ordinary capacity.

44 Given that I accept that his disease was actually symptomatic at the time he assaulted Mr Ray and because of my acceptance of the opinions of the psychiatrists, that those symptoms impaired his mental capacity, disregarding the effects of his self-induced intoxication, I am persuaded on the balance of probabilities that his impairment based upon his schizophrenia was so substantial at that time of the offending that a reduction in his liability from murder to manslaughter was warranted.

45 For the purposes of sentencing then, I am satisfied that the offender kicked Mr Ray intending to really seriously injure him, but that the impairment of his capacity to understand events, to make moral judgments, and for self control was so substantially impaired as to warrant liability for murder being reduced to manslaughter and I will sentence him on that basis.

Impact of the offending on family victims

46 Before dealing with the other matters relevant to the sentence I must pass upon the offender, I wish to say that I have had the great benefit of hearing Victim Impact Statements from three of Mr Ray's close relatives: his father, his sister and his daughter. As the learned Crown Prosecutor opened the case to the Jury, Mr Ray's status as a homeless man did not define him. Homeless he may have been at the time of his death, but he was certainly not unloved.

47 From his father's statement I understand that Mr Ray was a beautiful child, witty, intelligent and well behaved. He was also a prodigy in music. I understood him to be a talented jazz player, playing professionally in his teens. Unfortunately, older musicians introduced him to heroin and he became a drug addict in his late teens. He made many attempts at rehabilitation, was able to work, marry and become the father of two daughters. His drug addiction and the two years he spent in prison following his conviction for the manslaughter of his mother seem to have derailed his life and prospects of rehabilitation. His conviction was overturned and a re-trial ordered (see R v Ray [2003] NSWCCA 227; 57 NSWLR 616). I infer from what Mr Ray said that the prosecution did not proceed to retrial. (See Ray at 634 [121]). Mr Ray kept in touch with his son and met with him once every two months. He was hoping to help his son return to the family and to broader civil society. Now that hope has gone. He feels the loss of his son very keenly.

48 Mr Ray's daughter has suffered greatly since her father died. As she put it herself, she has twice suffered a nervous breakdown because of the aggravation of a pre-existing anxiety disorder brought about by her father's death. Mr Ray's sister has been very anxious since his death and cannot be as happy, or content, as she was formerly.

49 I fully accept that the family will labour permanently under their sense of loss.

50 I cannot leave this section of my reasons without saying that I received as evidence a letter from Mr Robert McKnight, the offender's father (Exhibit 7). In part he wrote:

Both the Ray family and our family have been through an extremely traumatic and difficult time for more than 2 years now. The Ray family and our family will always be tied together due to what happened on that tragic night in 2012.

During the Trial, I gave a handwritten note of apology to Mr Ray's family and received a generous heartfelt and humble response that I passed on to Michael and that we are grateful for.

51 In his Victim Impact Statement Mr. Ray said:

However, my heart goes out to Michael McKnight's family. My sadness will be with me until I die. But their's has a longer time to run. I wish them the strength to face what lies ahead. I know they love him and will continue to love him unconditionally, as parents do, and I do hope Michael comes out the other end with the wisdom to earn their pride and bring them peace.

52 I wish to say that I have been touched and impressed by the spirit of reconciliation between the Ray and McKnight families. Their spirit is a fine example to all of us.

53 However, I am bound to acknowledge that this spirit of reconciliation and forgiveness "cannot be allowed to interfere with a proper exercise of sentencing discretion" (Efthimiadis v R [2013] NSWCCA 276 at [67] per Johnson J). Serious crime is a wrong against the community at large and the community is entitled to exact punishment.

The offender's circumstances

54 The offender was aged 27 in March 2012 and 29 now. He was raised by a supportive family and is the youngest of three children. He was educated to year 12 and worked with his father as an electrician except when incapacitated by his psychiatric disease. His electrician father has now retired, as has his primary school teacher mother. He has been able to maintain relationships.

55 He committed a "car-jacking" offence as an older juvenile in 2002. I record that this was shortly after the first manifestation of his mental illness. As an adult he has one conviction for the offence of "goods in custody" for which he was serving a good behaviour bond at the time of this offending, a circumstances which aggravates it. Nonetheless considered overall, his prior record does not suggest that he is a person who habitually disregards the law, or is otherwise of bad character, especially when viewed through the prism of his mental illness.

56 I have set out the history of his mental illness above and will not recite it here. It represents a most significant factor to be borne in mind as I will explain.

57 An updated report of Dr Nielssen of 5th June 2014 was tendered (Exhibit 6). This expert expressed the view that because of the offender's compliance with the antipsychotic treatment he has received in gaol, his chronic schizophrenia is in remission and he remains free of the acute symptoms of his illness.

58 As I have said, while in custody he has fully complied with his medication regime and he has been of good conduct. There is one exception to this. He failed a prescribed urine test on 5th June 2014 for which he was punished. He gave evidence explaining that the drug he had taken was a prescription sleeping tablet which he had obtained from another inmate. He has complained to doctors who have treated him in prison of a difficulty sleeping. He apologised for the breach and, whilst it should be borne in mind, a solitary failure does not detract much from the impression of good conduct otherwise created.

59 During the course of his evidence, he expressed remorse for his offending. This expression of remorse was not challenged in cross-examination. Moreover, in a letter by his own hand, (Exhibit 8) he expressed his sorrow and remorse for the death of Mr Ray. He also stated his determination to remain on treatment for his illness "for the rest of [his] life".

60 I appreciate that it sometimes behoves judges to be slow to accept expressions of remorse made for the purpose of sentencing. However, the offender has given, as I have said, unchallenged sworn testimony, has expressed himself in writing, and his father, who seems to be a thoroughly decent and respectable person, states that his son has accepted responsibility for his offending. Mr McKnight's impression is that his son's remorse and sadness is genuine. I accept all of this evidence.

61 The offender has expressed to his parents his determination to live a good life upon his eventual release from prison. He told Dr Nielssen that once classified, he hopes to be able to undertake the necessary trade training to equip him to qualify as a licensed electrician. It may be that his prospects for rehabilitation depend in some measure upon him continuing to be compliant with his medication and avoiding substance abuse. But he has done well so far. His past record, given his mental illness, is also encouraging in this regard. On the evidence available to me, I would regard his prospects of rehabilitation as being better than reasonable.

62 As further evidence of the acceptance of responsibility, it is common ground that the offender offered to plead guilty to manslaughter in the Local Court before he was committed for trial and this offer was rejected by the Crown. It is also common ground that the utilitarian value of the offer, given the Jury's verdict, ought to be recognised by a conventional discount on the maximum sentence that would otherwise be imposed (R v Cardoso [2003] NSWCCA 15 at [17] - [21]; R v Johnson [2003] NSWCCA 129 [41] - [44]).

Consideration

63 The nature of the sentencing task is to fix the appropriate sentence for the offence and the offender, having regard to all relevant facts, matters and circumstances. A sentence must fit the offending having regard to its objective seriousness; that is the offender must be adequately punished for his offending. At the same time, a sentence should not exceed what is proportionate to the crime.

64 I bear in mind that the maximum penalty for manslaughter under s 24 Crimes Act 1900 (NSW) is imprisonment for 25 years. This not a case to which s 25A of that Act applies as the offending precedes its enactment. It would not apply anyway because of the offender's mental illness which is a significant cognitive impairment for the purpose of that provision.

65 It goes without saying, I think, that no penalty other than a period of imprisonment is appropriate in this case.

66 The starting point of assessing the objective seriousness of any case of manslaughter is the consideration that the offender by his violent conduct took a human life (Mundo v Western Australia [2013] HCA 38; 87 ALJR 1035 ([53] - [55]). The general rule is that it is necessary that violent offending be justly punished to vindicate the human dignity of the victim, to protect the community and to deter the offender and others. Mitigating factors must be given appropriate weight, but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the offence.

67 The Court must eschew any attempt to put cases of manslaughter into preconceived categories. Such categories do not exist. Each offending must be assessed by reference to all of its circumstances.

68 Moreover as the Crown submissions point out, at least on one level, this offending "called for the express and demonstrable application of the element of general deterrence as a powerful factor on sentence" (R v Loveridge [2014] NSWCCA 120). This followed because, as is clear from the facts as I have stated them, the offending in this case consisted of an unprovoked attack upon an unsuspecting and vulnerable member of the public, lawfully present on a public street by an offender intoxicated by too much alcohol and some cannabis. These considerations bespeak significant objective seriousness.

69 In Loveridge (at [216] - [217]) the Court of Criminal Appeal said:

... the commission of offences of violence, including manslaughter, in the context of alcohol-fuelled conduct in a public street or public place is of great concern to the community, and calls for an emphatic sentencing response to give particular effect to the need for denunciation, punishment and general deterrence.....

General deterrence and retribution are elements that must assume greater importance when the crime in question is a serious one, has been committed in a particularly grave form and its contemporary prevalence is the cause of considerable community disquiet: R v Williscroft [1975] VR 292 at 299.

70 In R v MD [2005] NSWCCA 342; 156 A CrimR 372 at 387 [65], the Court of Criminal Appeal said:

In many cases where an offender is convicted of manslaughter there will be exculpatory matters and personal circumstances that can lead the court to significantly ameliorate the sentence which might otherwise be imposed. However, as this Court pointed out in R v Troja (unreported, CCA 16 July 1991) it is important for the court to ensure that the subjective circumstances of an individual offender do not divert the court from imposing a sentence which adequately reflects the part which the law must play in upholding the protection of human life and in punishing those who take it.

71 However, the difficulty in this particular case, as the Crown submissions also recognised, is the part played by the offender's undoubted psychiatric illness. This consideration distinguishes this case considerably from cases involving manslaughter by dangerous and unlawful act where an offender has set out to either wreak havoc, engage in affray or give vent to a violent self-gratification.

72 The purposes of sentencing, and the principles which inform them, "overlap". And as "guideposts" they "sometimes ... point in different directions" (Veen v the Queen (No 2) [1988] HCA 14; 164 CLR 465 at 476).

73 The need for emphatic justice in the present case must be ameliorated to a degree by the offender's undoubted psychiatric illness, which in large measure, but not solely, accounts for his offending. I accept his intoxication and his non-compliance with his medication also played a, somewhat lesser, part. His experience of his illness would have made him aware of the effect of cannabis on his symptoms and that his symptoms would be worse if he was non compliant with medication. But one cannot expect a person with schizophrenia to be completely rational.

74 There are certain well recognised principles that come into play when sentencing a person suffering from mental illness, especially where as here, the mental illness was a significant cause of the commission of the offence. In such cases, the impairments arising from the mental illness substantially reduce the offender's moral culpability for the offence.

75 I am conscious that this offender's criminal liability has been reduced by his reason of his substantial impairment, but his condition continues to have relevance for sentencing purposes. Moral culpability, as distinct from legal liability, is an issue of particular relevance in sentencing (see Chung). Moreover, "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 ill] offender and to the needs of the community." Muldrock v the Queen [2011] HCA 39; 244 CLR 120 at 139 [54]. Additionally, it is well recognised that general deterrence should "often be given very little weight" in the case of the mentally ill "because such an offender is not an appropriate medium for making an example to others" (R v Mooney (unreported, Court of Criminal Appeal (Vic), 21 June 1978).

76 The relevance of specific deterrence may also be diminished (R v Windle [2012] NSWCCA 222 at [41] - 42]).

77 I recognise that the application of these principles relating to mental illness does not always lead to a lesser sentence than that which would be imposed upon an offender of ordinary capacity. (Veen No. 2 at 476 - 477; R v Engbert (1995) 84 A Crim R 67 at [71]). Sometimes an offender's mental illness will make him a particular danger to the community. This factor which may require a heavier sentence, proportionate to the offending, than that appropriate in the case of an offender of ordinary capacity. Moreover, in a given case, a need for specific deterrence of the offender may have a similar effect.

78 It is the interplay of the principles discussed in Loveridge with these principles relating to the effect of mental illness which is most significant in determining the appropriate sentence in all the circumstances of the present case.

79 There is no suggestion in the present case that the offender presents a particular danger to the public. True this offending occurred whilst he was at liberty conditionally. And that suggests a degree of disregard of the law. However, despite some aggression in his presentation when florid as disclosed by the past medical history, there is no history of actual violence and his criminal record as an adult does not suggest it. The bond was not imposed for a crime of violence. He has good insight and conducts himself well when he is compliant with medication.

80 On the other hand, I accept that his mental illness does not eliminate the need for considerations of specific deterrence in the present case. That need is engaged by him breaching his bond and by his long history prior to this offending of non-compliance with his medication and the abuse of alcohol and illicit drugs, which contributed to his offending. From his knowledge and experience he should know that cannabis aggravates his symptoms.

81 I accept his remorse is genuine and rehabilitation prospects are better than reasonable if he remains abstinent and compliant. I accept that his mental illness reduces his moral culpability, diminishes to a degree the emphasis on retribution for and denunciation of drunken violent offences in public streets, and greatly diminishes the utility of general deterrence in this case.

82 Even so, it is necessary to impose a sentence "which adequately reflects the part which the law must play in upholding the protection of human life and punishing those who take it" (R v MD at [65]). The offender's mental illness plays a central part in significantly ameliorating the sentence which might otherwise be imposed. However, this amelioration only goes so far. It remains necessary to impose a sentence which reflects the serious objective circumstances of this offending.

83 I think it appropriate to allow a 25 per cent discount on the sentence which would otherwise have been imposed to reflect the utilitarian value of the offender's offer to plead guilty to manslaughter at an early stage. But for this I would have imposed a term of imprisonment just shy of 11 years. This discount reduces the sentence to one of 8 years.

84 I am required to fix a non-parole period reflecting the minimum term that justice requires the offender to serve before release into the community. It should not be thought that release at the expiration of the minimum term is a foregone conclusion. It will depend upon many things, including the offender's continued good conduct whilst in prison. The question of whether the offender will be released is not for this Court. It's a decision that will be made according to law by the appropriate branch of the executive government in due course.

85 There is a statutory relationship between the head sentence and non-parole period which may only be varied by a finding of special circumstances. To establish special circumstances, the offender relies upon the opinion of Dr Nielssen that a longer period of parole in the offender's case may be protective against relapse to substance abuse and non-compliance with treatment. On the other hand, Dr Nielssen assesses the offender's prospects of adhering to treatment and abstinence favourably. Moreover, as the Crown argue, the statutory ratio is likely to provide a long period of supervision in the circumstances of this case in any event. I accept this submission. In all the circumstances of the present case, I am not persuaded that a longer period is necessary and accordingly special circumstances have not been made out. The non-parole period will be 6 years and I will backdate the sentence to 3rd April 2012 to take account of fulltime custody served whilst awaiting trial.

86 Michael McKnight, by its verdict the Jury convicted you of the manslaughter of Stafford David Ray on 25th March 2012. I sentence you to a term of imprisonment having a non-parole period of 6 years commencing 3rd April 2012 and expiring on 2nd April 2018 with an additional term of 2 years commencing on 3rd April 2018 and expiring on 2nd April 2020. The first date upon which you will be eligible for release on parole is 3rd April 2018.

**********

Decision last updated: 31 July 2014