R v Seymour [2012] NSWSC 1010 (30 August 2012)

Last Updated: 24 July 2013

Supreme Court New South Wales

Case Title:	R v Seymour
Medium Neutral Citation:	[2012] NSWSC 1010
Hearing Date(s):	5 March 2012 - 26 March 2012 29 June 2010 17 August 2012
Decision Date:	30 August 2012
Before:	Price J
Decision:
Catchwords:	CRIMINAL LAW - sentencing - excessive self defence manslaughter
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 s 21A(2)(ea), s 21A(3)(b), s 21A(3)(c), s 21A(3)(i)(i)-(ii), s 21A(3)(g)-(h)
Cases Cited:	Gore v R; Hunter v R [2010] NSWCCA 330; (2010) 208 A Crim R 353 R v Badanjak [2004] NSWCCA 395 R v Blacklidge (unrep, NSWCCA 12 December 1995) R v Hemsley [2004] NSWCCA 228 R v Hill (1981) 3 A Crim R 397 R v Israil [2002] NSWCA 255 R v Macdonald (unrep, NSWCCA 12 December 1995) R v Pilley (1991) 56 A Crim R 202. R v Previtera (1997) 94 A Crim R 76 R v Smith (1987) 44 SASR 587 R v Woodland [2001] NSWSC 416 Salah, Dror v R [2009] NSWCCA 2
Category:	Sentence
Parties:
Representation
- Counsel:	Mr Smith (Offender) Mr Patrick (Crown)
- Solicitors:	Ms V Hampel (Offender) Mr J Sfinas (Director of Public Prosecutions)
File Number(s):	2010/392076

REMARKS ON SENTENCE

1. HIS HONOUR: Krystal Jade Seymour has been found guilty by a jury of the manslaughter of her mother, Donna Marie Seymour on 24 November 2010. The jury acquitted her of the deceased's murder.

2. The offender stabbed the deceased once with a kitchen knife in the back of the left upper arm, severing the brachial artery which is a major blood vessel. The deceased died from blood loss due to the stab wound. The deceased was 48 years old at the time of her death.

3. The maximum penalty for the crime of manslaughter is imprisonment for 25 years.

4. It is my duty to determine the facts relevant to sentencing the offender. My view of the facts must be consistent with the verdict of the jury and the findings of fact I make against the offender must be arrived at beyond reasonable doubt: R v Isaacs (1997) 41 NSWLR 374. Matters of mitigation may be proved on the balance of probabilities: R v Pilley (1991) 56 A Crim R 202.

5. Although the jury was directed that a verdict of manslaughter was available if the Crown was unable to exclude the reasonable possibility that the offender killed the deceased under provocation, or that a verdict of manslaughter by an unlawful and dangerous act was open in the event that the Crown had not established beyond reasonable doubt that the offender had an intention to kill or to inflict grievous bodily harm, I am satisfied that the verdict of manslaughter was returned because the Crown was unable to exclude the reasonable possibility that the offender personally believed her conduct was necessary to defend herself. However, the jury was satisfied beyond reasonable doubt that the stabbing of the deceased was not a reasonable response to the circumstances as the offender perceived them to be. Accordingly, the offender is to be sentenced upon the basis that her liability for manslaughter arises because her conduct amounted to excessive self defence. Both Mr Crown and Mr Smith, the offender's counsel, do not suggest otherwise.

6. The offender had been living with her two year old son in the deceased's home at Girraween. She had been out with friends and the deceased had been at home looking after the child. The offender returned to the home in the early hours of the morning on 24 November 2010. The offence was committed shortly before 3.45am.

7. In order to make findings of fact that are consistent with the jury's verdict, it is necessary to recite very briefly some of the evidence in the trial and to refer to submissions made by counsel.

8. Mr Smith contended that the offender's relationship with the deceased was turbulent. He invited me to find that the deceased was verbally abusive towards the offender and at times physically violent towards her.

9. Brooke Seymour, one of the deceased's daughters, gave evidence that in 2010 the deceased had attacked the offender who was holding her son. Miss Seymour said the deceased scratched, punched and slapped the offender after an argument had taken place in the lounge room and kitchen of the home.

10. David Johnson told the jury that he had seen the deceased kicking the offender around her middle section, when the offender was about 14 or 15 years old. Mr Johnson testified that the offender telephoned him in about April 2010, telling him that she had been arguing with her mother and that she wanted to travel to Queensland. He heard a smacking sound and no one talked on the telephone for a few minutes, but he heard two women arguing. The offender picked up the phone and said that she wanted to go to Queensland but her mother did not want her to come. Mr Johnson heard a voice in the background saying "You're going nowhere." The offender rang back the following day, telling him that her mother had hit her child who was in her arms and had thrown her out of the house. Mr Johnson saw the offender at the Formule 1 hotel and observed that she had a bruise on her face and was cuddling the child.

11. Mr Crown was critical of Mr Johnson's evidence and contended that he was not a reliable witness. Although Mr Johnson was a colourful character, I did not find him to be dishonest or unreliable. His evidence was in part supported by the photos (trial ex 1) and the hotel receipt dated 8 April 2010 in the offender's name (trial ex 2).

12. Jason Jonathon gave evidence of the deceased and the offender arguing and calling each other names. He observed the deceased following the offender and blocking her path when she tried to pass. Patricia Seymour, the deceased's mother, recalled verbal arguments between mother and daughter, with the deceased mainly shouting at the offender.

13. Nicole Seymour, another of the deceased's daughters, gave evidence of the deceased and the offender having arguments and of the deceased chasing the offender to her room. She said that there were occasions when she witnessed the deceased smashing things in anger whilst she was shouting at the offender. She agreed that the arguments between the offender and the deceased had worsened towards November 2010 because the deceased had become more argumentative and lost her temper more quickly, but said that she had not seen the deceased physically touch the offender. Ms Seymour said that she was aware that her mother had been using drugs for a little over ten years, but the deceased's drug use had increased "severely" towards November 2010. The deceased was, she said, injecting a lot of ice and speed.

14. I am satisfied on the balance of probabilities that the relationship between the offender and the deceased had involved verbal abuse and acts of physical violence by the deceased towards the offender. The last occasion of physical violence before 24 November 2010 had been in April of the same year.

15. Mr Crown submitted that the offender's account as to what happened at the time of the stabbing, provided in the second interview conducted by Detective Wiedemann (the second interview) should not be accepted. The Crown referred to the inconsistency in the three versions provided by the offender during this interview. When responding to submissions made by Mr Smith about the deceased's amphetamine consumption, the Crown argued there was no evidence that established that the deceased had been violent in the incident that had led to her death.

16. On the other hand, Mr Smith contended that the court should proceed to sentence on the basis of the version of events proffered in the second interview by the offender, wherever that version is consistent with the jury's verdict. Mr Smith argued that the deceased's amphetamine intoxication pre-disposed her to violence. Although the deceased had an injury to her leg, it was submitted that the court could not be satisfied beyond reasonable doubt that the deceased's movements were restricted to the extent that they impacted upon the objective seriousness of the offence.

17. A Certificate of Analysis (trial ex P) of the deceased's blood disclosed that amphetamine, methylamphetamine, delta - 9 THC (tetrahydrocannabinol) and methadone were detected. Mr Farrar, a forensic pharmacologist, gave evidence that if the deceased was in the excitatory phase of amphetamine absorption that some people can behave very violently at the type of level that was present. He described the concentration of methylamphetamine as being about mid-range. However, the amount of methadone detected was extremely high and indicated that the deceased would not have been capable of expressing aggressive behaviour physically as much as if she was methadone free. Dr Duflou, a forensic pathologist, described methylamphetamine as a stimulant drug that can provide feelings of relative invincibility.

18. Debra Portelli, the deceased's sister, said that she last saw the deceased about a month before her death. She described her sister as not being in very good health, that she had a bad ulcer on her left shin and a fused right knee. The deceased did not walk quickly when she saw her. Ms Portelli saw her sister having difficulties arising from a sitting position and would use her hands to push herself up. In cross-examination, she agreed that her sister was not in a hurry on the occasions she had seen her.

19. Dr Packham testified that he had seen the deceased on a number of occasions at Westmead Hospital. The deceased had been on a methadone program of 200 milligrams daily and had a previous history of narcotic addiction. Dr Packham said that the deceased had blockages of the veins in the upper legs, so that both legs were swollen and she had chronic swelling and hardness of the lower legs. A fusion of the right knee meant that she could not straighten this knee completely.

20. Dr Packham explained that the deceased had adjusted to these longstanding problems. He said that whilst she would not have been able to run or move rapidly upstairs, she could walk without too much difficulty and could have hurried if she'd wanted to on a flat surface. He agreed that the deceased was capable of moving quickly over 3 to 10 metres within a house. Dr Packham told the jury that the deceased had chronically abused drugs for many years and was accustomed to using a very large dose of narcotic. He did not think that being affected by drugs, would have impacted upon her ability to get around as she was accustomed to it and had been taking drugs for years.

21. I am not persuaded that the deceased's physical difficulties prevented her from moving quickly towards the offender. As to the effect that the offender's methylamphetamine consumption may have had upon her, Nicole Seymour's observation was that the deceased had become more argumentative and was more prone to lose her temper. Sadly, the deceased was a chronic drug abuser. Although her methadone ingestion may have diminished to an extent the effect of methylamphetamine absorption, I am not satisfied that it had no impact upon the deceased's behaviour after the offender returned home. It is more probable than not that the use of methylamphetamine increased the level of the deceased's anger and aggression towards her daughter.

22. The offender did not give evidence during the trial, but had participated in two electronically recorded interviews with police that were played to the jury. In the first interview the offender lied, telling the police officers that she had spent the night at the home of Joseph Tannous. During the second interview (trial ex CC), the offender relevantly gave the following answers:

"Q23. ...can you please tell us what happened last night at the house at Girraween, please.

A.I got home and I was sitting in the kitchen and I was making, I was trying to make a sandwich. I just wanted to make a sandwich and go to bed, and I don't know why she got angry and she come up and she charged at me and she head-butted me and then I didn't know really, I don't know, I had a knife in my hand and I just, I just turned around and I just stabbed her. I didn't mean to do it."

...

Q112....So she gets up and charges at you. What happened then?

A.I turned around and I hurt her.

Q113....Did she do anything to you?

A.No, she went to, but before she did, I didn't give her the chance this time.

Q114....What did she go to do to you?

A.I don't know, just hit me, I don't know. She raised her hand, I don't know what she was going to do with it.

Q115...Did she strike you last night?

A.She didn't end up, she, she could have, like she went to, but I like, I, I didn't let her, like I don't know, usually she hits me or she will attack me, and I won't do anything, and last night, I don't know, I just, I just turned around and I didn't mean to hurt her."

...

Q527...When you had a fight with your mum and you stabbed her in the shoulder what did you have as an intention in your mind, what did you think you were going to do, why did you --

AIt was just a reaction, it was nothing in my mind, as she, as she like charged me, I didn't know what she was going to do to me, it was just a reaction.

Q528Did you intend to kill your mother?

ANo way, no, I loved my mum, no, we fight but I loved her, I loved her..."

23. Detective Wiedemann asked the offender when was the last time her mother had hit her and the offender replied that it was probably a few months ago when her mother attacked her and her son in her room at Girraween and her little sister was there. The offender went on to explain that the deceased had attacked her, had thrown her son at her and dived on her. She had scars on her back from where the deceased had dug her nails in: Q & A 117-128. This account is consistent with the evidence of Brooke Seymour.

24. Other accounts given by the offender of what had happened included Joseph Tannous's recollection to police that the offender told him when they met at Girraween Park between 4 and 4.30am that T 310 45 T 311 2:

"...her mother screamed out, she come in to headbutt her again. She was scared. She turned. When she turned she doesn't know - she (sic) - knife in her hand.

...

And she said, you know, the knife went through her arm and she - blood start come out."

25. Detective Wiedemann gave evidence of a conversation that he had with the offender at Merrylands Police Station at about 3.30pm on 24 November 2010, which included the following T 342 24-29:

"I said, 'Will you tell us what happened?' She said, 'I came home and was trying to make a sandwich and Mum charged at me. I had a knife in my hand and I turned around and stabbed her. I didn't mean to stab her. I just wanted her to stop.' I said, 'Where did you stab her?' She said, 'Her arm,' making a gesture indicating her left upper arm."

26. The jury heard the recording of a triple-0 call made by the deceased at about 3.45am. The deceased told the operator that she was bleeding to death. The offender is heard in the background to be saying:

"She pushed me, she pushed me."

...

"And fucking pushed me."

...

"I fucking hate you, I wish you'd fucking die.

"I fucking hate you."

...

"You fucking die. Die. You dog."

...

You fucking attacked me..."

27. During the second interview, Detective Sergeant Wiedemann asked the offender about the triple-0 call:

"Q477If you are prepared to, can you describe to us what you may have said to your mother at that time and after you had the fight with her and she was stabbed?

AI really don't know what I said to her, I was just so angry, I don't know.

Q478...You said that to me before, you were angry.

A Only because she come charging at me, otherwise I was fine, I was ---

Q479O.K.

A---making a sandwich, I was hungry.

Q480If I tell you that the other person on that recording said, "I hope you die, bitch" can you tell me anything about that?

AI could have, I might have said that to her, I could have.

Q481O.K.

ABut I don't recall it.

Q482Was that, and you said that you were angry at the time.

AI didn't mean to do anything to her."

28. Shortly after the triple-0 call, the offender placed her son in a pram and left the home, taking the knife with her. Ambulance officers arrived at the scene at about 3.55am but had to await the arrival of police at about 4.00am. When the police entered the house, the deceased was found in the family room, but was dead.

29. The stab wound had passed through the back of the left arm and penetrated through the triceps muscle for a distance of about 8 to 9 centimetres. The knife blade continued through the arm severing the brachial artery and cutting the adjacent brachial vein and exited through the front of the arm, just below the armpit. As a consequence of the severing of a major blood vessel, the deceased bled to death.

30. After the offender met Mr Tannous in Girraween Park, he took possession of the knife and threw it onto the roof of a nearby toilet block.

31. It is plain that the various accounts provided by the offender as to the actions of the deceased shortly before her death are not consistent and I do not accept all of what the offender said in the second interview. I am not satisfied on the balance of probabilities that the deceased head-butted her or pushed her. I find that when the offender returned home, she went to the kitchen to make a sandwich and for that purpose had a knife in her hand. While the offender was in the kitchen, the deceased who had been lying on a fold up bed in the family room, became angry with the offender. The deceased arose from the bed and rushed towards her daughter, raising her hand as if to hit her. The offender turned and stabbed her mother with the knife once in the left upper arm.

32. It was part of the offender's case at trial that the stabbing was accidental and that she did not intend to hurt the deceased. Any suggestion of accident was demolished by the acrimony manifested by the offender towards the deceased during the triple-0 call and her failure to render assistance. I am satisfied beyond reasonable doubt that the offender deliberately stabbed the deceased.

33. Mr Crown invited me to find that the offender had an intention to kill and the matters to which he referred, included the force with which the blow was struck, the offender's aggressive demeanour during the emergency call, the lack of assistance and the offender's "consciousness of guilt" given her flight from the scene. However, I am not satisfied beyond reasonable doubt that the offender stabbed the deceased with the intention to kill. There was no further violence by the offender after the single blow was struck to her mother's arm. Should the offender have intended to kill the deceased, she could readily have continued the stabbing, but did not do so. Furthermore, the extent of the wound does not in the present case determine the question of the offender's intention. Dr Duflou gave evidence that a very sharp pointed knife would require a minor amount of force to enter the skin. He explained that once the skin has been entered, unless the weapon strikes a bone or possibly cartilage, no additional force was necessarily required. The kitchen knife (trial ex K) is sharp and pointed. It remains a reasonable possibility that the offender's expressions of anger towards the deceased in the triple-0 call resulted from the deceased's attack upon her and their turbulent history.

34. I find beyond reasonable doubt that, at the time the offender deliberately stabbed the deceased, she did so with the intention of inflicting grievous bodily harm upon her.

35. Consistent with the jury's verdict, I find that the offender stabbed her mother as she genuinely believed that she was under attack and it was necessary to do what she did in order to protect herself, but the force she in fact used was excessive in the circumstances.

36. Mr Smith contended that the offender's action was only 'marginally' excessive. Mr Crown argued that this contention should be rejected, that it was the offender who had initiated a physical response and introduced a knife into the incident and the threat posed by the deceased was minor, given her age, her impaired physical condition and lack of a weapon.

37. Contrary to the Crown's contention, the offender did not introduce the knife into the offence, but had been using it for culinary purposes prior to the deceased's aggression towards her. Regrettably, the offender in fear that her mother would physically assault her, resorted to the knife that she had in her hand. The offender did not at any stage maintain that she was in fear of her life.

38. The use of the knife was disproportionate to the threat that the deceased posed to the offender and was unreasonable in the circumstances as the offender perceived them to be. Although the deceased's disabilities had not prevented her from previously assaulting the offender, none of the assaults had been life threatening or had occasioned serious bodily harm or had a weapon been used. A factor that increases the objective seriousness of the offence is that the offender did not fear for her life, but responded with the use of a knife. I do not agree with Mr Smith's contention that the offender's response was only 'marginally excessive'.

39. One of the arguments advanced by Mr Smith was that there was no evidence to suggest that it was readily apparent to the offender how badly the deceased was bleeding at the time she left the house. Furthermore, there was insufficient evidence to conclude that the offender overheard the deceased tell the operator in the triple-0 call that she was bleeding to death.

40. During the second interview, Detective Wiedemann, relevantly, asked the offender:

"Q514...Following stabbing your mother was there much blood in the room?

AYes there was.

Q515 Do you know, was the blood concentrated to just the kitchen area or was it, was the blood spraying around?

A...I don't know, I just seen it on the floor of the kitchen.

Q516 Is that when your mother was standing or had she fallen over at that stage?

AShe did not fall over when I was there.

...

Q518What was she doing when you were there?

AShe was on the phone last time when I left, but she was still standing, still standing.

...

Q521 ...When you left the house she was still standing, O.K. What did you think would happen with the injury she had? I mean she's bleeding ---

AI didn't know, I honestly didn't know and I swear to you, I promise to God, I didn't know she was going to die."

41. I am satisfied beyond reasonable doubt that the offender was aware that the deceased had been seriously wounded, but would accept that she was unaware that her mother would die from the stab wound. I find that the offender's failure to render any assistance at all to the deceased after the stabbing increases the objective seriousness of the offence.

42. Mr Crown invited me to find as an aggravating factor that the offender's two year-old child was present in the room at the time of the offence. Section 21A(2)(ea) Crimes (Sentencing Procedure) Act provides that the commission of the offence "in the presence of a child under 18 years of age" is an aggravating factor to be taken into account in determining the appropriate sentence. The evidence relating to the child is confined to the offender's answers in the second interview. The offender told Detective Wiedemann (Q & A 74) that her son was asleep on the lounge, that when she picked up her son following the incident that he was asleep (Q & A 504-505). During oral argument, Mr Crown referred to the circumstances of the offence and the loudness of the offender's language on the triple-0 call recording, so as to suggest that the child must have been woken by what had occurred.

43. Mr Smith cited what was said by Howie AJ in Gore v R; Hunter v R [2010] NSWCCA 330; (2010) 208 A Crim R 353 at [104] that s 21A(2)(ea) is "principally aimed at the deleterious effect that the commission of a crime, particularly one of violence, might have on the emotional wellbeing of a child." Mr Smith argued that in order to find that the offence is aggravated by reason of the presence of the child, the court would need to be satisfied beyond reasonable doubt that the child witnessed the offence, or at the very least its immediate aftermath. Mr Smith submitted that the evidence was insufficient to establish that the child was awake and conscious of what was occurring or had occurred.

44. I agree with Mr Smith's submissions. There is no evidence that the child was awake nor can a child be heard during the triple-0 call. I decline the Crown's invitation to take into account this factor of aggravation.

45. There are a number of factors that mitigate the objective seriousness of the offence. The offence was not planned, but was committed on the spur of the moment, the offender reacting to the exigencies that she found herself in: s 21A(3)(b) Crimes (Sentencing Procedure) Act. She did not reach for or obtain a weapon, but used the knife that she was holding to make a sandwich. There was some provocation by the deceased: s 21A(3)(c) Crimes (Sentencing Procedure) Act. The deceased was the original aggressor and without her aggression, the offence would not have occurred. Furthermore, the offender desisted from inflicting further violence upon her mother after the single knife blow.

46. I do not think that to take into account the offender's aggression as provocation amounts to 'double counting' of matters in the offender's favour. As Rothman J observed in Salah, Dror v R [2009] NSWCCA 2 at [31] the "subjective element [of self defence] may be present without the objective existence of aggression on the part of [the deceased]."

47. The offender was born on 31 May 1986 and was 24 years old when the offence was committed. She is now 26 years old. Her prior criminal history reveals offences which were dealt with by way of convictions and fines in the Local Court. There is one previous offence that involved violence, being an assault of an officer in the execution of [his] duty for which the offender was fined $500 in the Bankstown Local Court on 6 March 2007. The offender's record of previous convictions is comparatively minor and does not disentitle her from considerations of leniency.

48. The offender did not give evidence during the proceedings on sentence. Her subjective circumstances are drawn from a Probation and Parole report (ex B) and from the history provided in Dr Stephen Allnutt's report dated 20 October 2011 (ex 1).

49. The offender shares a common parent with five siblings, of whom she is the third eldest. Her parents separated, but her father remained supportive until his death in 2003. She lived with her mother, but was with her grandmother "on and off". The offender related to Dr Allnutt that her relationship with her mother was difficult as she was unavailable, would not listen, would scream and swear at her and had multiple partners and boyfriends.

50. The offender told Jake Docker, the author of the Probation and Parole report, that her childhood was "characterised by physical and emotional abuse and witnessing domestic violence and illicit drug use by adults and care givers." Mr Docker reported that contact with the offender's maternal grandmother "revealed that throughout her childhood, [the offender] was denied basic essentials and had poor adult pro-social modelling." He stated, "it would appear that the offender had a problematic childhood and her family environment was less than positive."

51. The offender was educated to Year 8 or Year 9 level, but experienced difficulties at school. She attended a special needs primary school and had learning problems. During her late teens, she used cannabis daily and was a regular user until she entered into custody. She had used heroin for a few months and methamphetamines intermittently. The offender has had three significant relationships resulting in three children. The first two children have been in the care of their biological father and the youngest child was in the offender's care prior to the present offence. Mr Docker reported that the offender "has had no gainful employment in the community and prior to her current incarceration was in receipt of parenting benefits": (ex B p1).

52. I accept Mr Smith's submission that the offender's upbringing was deprived and dysfunctional and provides a context against which the offence might be viewed.

53. In his report (ex 1 pp5-6), Dr Allnutt considered that the offender "was manifesting symptoms consistent with a depressive disorder characterised by a depressed mood with disturbances in sleep, reduced appetite, lethargy, reduced motivation, impaired self-esteem, loss of interest in activities [and] an anhedonia with a history of panic attacks." It appeared to Dr Allnutt (ex 1 p3) that this depressive disorder had its onset in approximately 2005/2006 which was after a suicide attempt and admission to Cumberland Hospital. She had through the years been prescribed a number of medications including Valium and was taking Seroquel 200mg to assist her with her sleep whilst in custody. Dr Allnut noted that the depression persisted after the birth of the offender's child and the offender continued with limited support and ongoing conflicts with the child's father. The offender told Dr Allnutt that she had found living with her mother to be stressful and her depression had worsened overtime. Dr Allnutt was of the opinion that the offender's functioning "was mildly to moderately impaired secondary to ongoing depressive symptoms"(ex 1 p6).

54. Dr Allnutt in a second report dated 16 August 2012 stated (ex 3 p 3):

"Taken in isolation her depression could have made (sic) more prone to have a negative perception of her circumstances and to irritability and short temperedness and more prone to aggressive outbursts."

55. The offender is currently taking Effexor 225mg and Seroquel 200mg daily. Dr Allnutt considered that the offender continued to manifest symptoms consistent with a depression.

56. In oral evidence, Dr Allnutt expressed the opinion that the offender's depression would have been a contributing factor in the commission of the offence. He explained that "it is not an uncommon experience for most of us when we feel down, sad, miserable, or depressed we are more likely, if we have a bad day and someone does something to us, to react in an impulsive manner or aggressive manner": (POS T 15 45-48).

57. During cross-examination by Mr Crown, Dr Allnutt gave evidence that a person who is suffering from depression can go out on the town and appear to enjoy herself, but agreed that a depressed person can be less likely to engage in social behaviour. He agreed that it was possible that depression was not a feature of the offending, but in re-examination said that he considered on balance that the depression had made a contribution. Dr Allnutt could not say to what degree the depression had contributed to the offence. It was, however, a clinical depression of a severity, for which medication would be prescribed.

58. Mr Crown submitted that Dr Allnutt's evidence was unsatisfactory and it had not been established that the depression, if suffered by the offender, was a contributing factor in the commission of the offence.

59. It is hardly surprising, given the offender's deprived background and unhappy relationship with the deceased, that she was suffering from an ongoing depressive illness at the time of the offence. I accept Dr Allnutt's opinion that her depression made her more prone to negative perceptions and to impulsive or aggressive reactions. I am satisfied on the balance of probabilities that the offender's depression was a contributing factor to the spontaneous use of the knife in her belief that its use was necessary to protect herself from her mother's attack. The offender's moral culpability for her offending is reduced by reason of her depression: R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Israil [2002] NSWCA 255 at [23].

60. Mr Smith submitted that the offender's emotional distress in the second interview, which she continued to manifest during the trial, demonstrated that she was remorseful. Mr Smith also pointed to the statement in the Probation and Parole report that "[the offender] was able to verbalise her remorse for her actions."

61. Mr Crown submitted that the offender had not demonstrated remorse for the offence and had not offered a plea to manslaughter at any stage.

62. Remorse as a mitigating factor is qualified by s 21A(3)(i)(i)-(ii) Crimes (Sentencing Procedure) Act which requires the offender to provide evidence that she has accepted responsibility for her actions and has acknowledged any injury, loss or damage caused by them.

63. The offender did not demonstrate any remorse at the time of or shortly after the stabbing. She did not help or try to obtain any assistance for her mother, but abandoned her. By the time of the second interview, it is apparent that she had come to appreciate and to regret that her mother had died. The following passage in Dr Allnutt's report discloses her present attitude (ex 3 p2):

"...she missed her mother terribly...she stated 'there are no words I can use to describe how I feel about what happened to my mother'; she did not want to hurt her and had no intention to hurt her; she wished she could turn it around; it made her feel sick when she thought about it."

64. I accept that the offender regrets having killed her mother and acknowledges her tragic loss. The offender, however, continues to maintain that she did not intend to hurt the deceased. By failing to recognise that she deliberately stabbed the deceased with the intention of inflicting grievous bodily harm, the offender has not fully accepted responsibility for her actions. I take into account to this limited extent, remorse as a mitigating factor.

65. Although the offender manifests limited remorse, her comparatively minor criminal record, her relative youth and the positive steps taken whilst in custody strongly suggest that she is unlikely to re-offend in this way again. The offender has been in employment and has not been the subject of any custodial administrative or disciplinary charges. The certificates in exhibit 4 demonstrate the education workshops and programs that have been completed. She has been consulting a psychiatrist and is taking medication to address her depression. I consider that the offender is unlikely to re-offend and has good prospects of rehabilitation: s 21A(3)(g)-(h) Crimes (Sentencing Procedure) Act. Accordingly, personal deterrence does not have a significant role to play in my sentencing task.

66. During oral submissions, Mr Smith conceded that Dr Allnutt's evidence did not go so far that the court "could arrive at a view that [the offender] is an inappropriate or less appropriate vehicle for general deterrence": (POS T 39. 40-45). Notwithstanding this concession, the circumstances of the present offending reduce the weight that I give to general deterrence in the sentence.

67. Mr Smith did, however, submit that the offender was likely to find her time in custody more difficult by reason of her depressive illness. The offender has been receiving treatment whilst in custody for her psychiatric illness and is taking medication. It is clear that the offender's depression can be adequately managed within the prison system and that imprisonment will not be a greater burden for her by reason of that condition. The principles in R v Smith (1987) 44 SASR 587 are not enlivened so as to mitigate the offender's sentence: see also R v Badanjak [2004] NSWCCA 395.

68. A victim impact statement from Debra Portelli the deceased's sister was read to the Court. The contents of the statement cannot be used by me to increase the offender's sentence: R v Previtera (1997) 94 A Crim R 76. I acknowledge the grief and distress of the deceased's family and express on the community's behalf its sympathy and compassion for them.

69. The crime of manslaughter involves the felonious taking of human life and has always been recognised by the law as a most serious crime: R v Hill (1981) 3 A Crim R 397 at 402. The value, which the community places upon the preservation of human life, is reflected by the need to have the conduct denounced by a sentence appropriate to the circumstances of the case: R v Macdonald (unrep, NSWCCA 12 December 1995). The starting point in the present sentencing exercise as in all offences of manslaughter, is that the life of Donna Marie Seymour has been unlawfully taken: R v Blacklidge (unrep, NSWCCA 12 December 1995).

70. My attention was drawn to Judicial Commission sentencing statistics for offences of manslaughter (ex 5), but the limited use that may be made of these statistics is further diminished by the wide embrace of offending that might amount to the crime of manslaughter: R v Woodland [2001] NSWSC 416 at [27]- [30].

71. Having considered all possible alternatives, I am satisfied that no penalty other than full time imprisonment is appropriate. The offender was arrested on the day of the offence and has remained in custody ever since. The sentence will commence on 24 November 2010.

72. In my view, an appropriate sentence is one of 6 years 6 months imprisonment. I find special circumstances being the offender's separation from her young son, the need for continuing psychiatric treatment and for assistance to overcome her substance abuse issues.

73. Krystal Jade Seymour for the offence of manslaughter I sentence you to a term of imprisonment with a non-parole period of 3 years 6 months which is to commence on 24 November 2010 and is to expire on 23 May 2014. I set a balance of term of 3 years which is to commence on 24 May 2014 and will expire on 23 May 2017.

74. The earliest date of eligibility for your release to parole is 23 May 2014.

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