R v AB

1. [1]

   SIMPSON J: This is an appeal under s 5D of the Criminal Appeal Act 1912 (NSW) by the Director of Public Prosecutions (“the Director”) against asserted inadequacy of sentence.

Background

1. [2]

   On 10 July 2010 the respondent was arrested and charged with the murder of his former de facto wife earlier that day. On 3 December 2012, after a hearing pursuant to the provisions s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the Forensic Provisions Act”) Bellew J found that he was unfit to be tried. A consequence of that finding was that he became a “forensic patient”: see s 3 and s 42 of the Forensic Provisions Act. He was, as is required, referred to the Mental Health Tribunal (“the Tribunal”) for assessment. In accordance with the regime laid down by the Forensic Provisions Act, a special hearing took place before Adams J, commencing in October 2013. At that hearing the respondent did not contest that he had killed the victim. He raised defences under s 23 and s 23A of the Crimes Act 1900 (NSW) (respectively, provocation and substantial impairment by abnormality of mind). (Strictly speaking, it is inaccurate to refer to provocation as a “defence”. That is because, pursuant to s 23(4), where there is any evidence of provocation, the onus lies on the Crown to prove that the killing was not committed under provocation.)

2. [3]

   The special hearing before Adams J took place without a jury. On 26 November, Adams J rejected the “defence” of provocation but upheld the defence (properly so called) under s 23A.

3. [4]

   Section 23A(1) has the effect of reducing an offence that would otherwise be murder to manslaughter if:

4. [5]

   As a consequence of those findings, and in accordance with s 22(1) of the Forensic Provisions Act, Adams J found that, on the limited evidence available, the respondent was not guilty of murder but was guilty of manslaughter. The provisions of the Forensic Provisions Act dictated the sequence of events that followed. The respondent was referred to the Tribunal, and continued to be a forensic patient.

5. [6]

   Section 23(1) of the Forensic Provisions Act requires that following a special hearing where it is found on the limited evidence available that an accused person has committed an offence, the court must indicate whether, if the special hearing had been a normal trial of criminal proceedings against a person fit to be tried, it would have imposed a sentence of imprisonment, and:

6. [7]

   Having heard submissions on behalf of the parties, Adams J nominated a limiting term of 7 years, commencing on 10 July 2010 (the day the respondent was taken into custody) and referred the respondent to the Tribunal. It is against that order that the Director now appeals under s 5D of the Criminal Appeal Act which permits the Director to appeal to this Court against sentence. For the purposes of s 5D, a limiting term is a sentence against which the Director may appeal.

The facts and circumstances of the offence

1. [8]

   What follows is largely drawn from the reasons of Adams J for finding the respondent not guilty of murder but guilty of manslaughter following the special hearing. To a large extent the relevant facts were undisputed.

2. [9]

   The respondent had lived for some years in a de facto relationship with the victim in a small village called Mooral Creek, approximately 26 kilometres out of the town of Wingham, in country NSW. Together, the respondent and the victim had a daughter, who, at the time of the death of her mother in July 2010, was 7 years of age. Sometime before that date, the victim ended the relationship with the respondent. She and the daughter moved out of the house they had previously shared with the respondent, eventually settling in rented premises in Wingham. There were conflicts between the respondent and the victim. These involved the respondent’s access to their daughter, and complaints made by the victim about the care given to her by the respondent during periods of access. There were conflicts over the division of property, and the respondent suspected the victim of infidelity. There was evidence that, after her departure, the respondent made threats to others to kill either the victim or their daughter. There was also evidence that the respondent had, at that time, been a heavy consumer of alcohol.

3. [10]

   During the afternoon of 10 July 2010 (a Saturday) the respondent drove to the premises in Wingham by then occupied by the victim and their daughter. Both the victim and the daughter were present. The respondent was in possession of a rifle. He left the rifle in the car, and walked into the premises where he had a conversation (probably confrontational) with the victim. He retrieved the rifle from the car, and returned to the house and shot the victim five times. He then drove off.

4. [11]

   He drove to his home in Mooral Creek. On arrival there, he rang the emergency number, 000. He had a lengthy conversation with the operator. He immediately told the operator:

5. [12]

   A few minutes after this conversation ended, the respondent again rang 000. This call was taken by a different operator. The respondent also told the second operator that he had shot his de facto. He said that he thought he had fired three or four times. He said:

6. [13]

   The respondent then drove back to Wingham where he was arrested at about 5.20pm. He was interviewed by police. Much of what he said appears to have been inconsistent, but he never resiled from his admission that he had killed the victim. He also continued to make clear that his motivation had been resentment at the victim having left him and having made property and financial demands.

7. [14]

   He did express some (minimal) concern that his daughter had been in the house at the time of the shooting. In addition to having said that he was sorry about “the little one”, in answer to a question about what he thought when he saw his daughter at the house he answered:

The respondent’s mental state at the time of the killing

1. [15]

   The respondent was born in 1945. He was 64 years old at the time of the killing. In 2008 he was diagnosed as suffering from depression and having low self-esteem, and irrational fear. The depression stemmed from a serious injury sustained in 1994. The fear was due to his financial difficulties and back pain.

2. [16]

   There was psychiatric evidence from four psychiatrists. There was little difference between them. The diagnosis was of adjustment disorder with depressed mood. Adjustment disorder is a reaction to stressors which exceeds the person’s coping capacity, resulting in psychiatric symptoms which either significantly impair function or are greater than might be expected as a reaction to the particular stressor.

3. [17]

   The respondent was also diagnosed with dementia (probably caused by long term hazardous alcohol consumption), cerebro vascular disease and possible Alzheimer’s dementia.

4. [18]

   It was on the basis of this evidence that Adams J found the s 23A defence to have been established.

The respondent’s health and circumstances following the special hearing

1. [19]

   The special hearing took place in October 2013, and Adams J delivered his findings on 26 November of that year.

2. [20]

   As a forensic patient (from 3 December 2012, when he was found unfit to be tried), the respondent had been referred to and reviewed by the Tribunal. Available to Adams J was a determination of the Tribunal of 17 March 2014 and a report on which it had been based, the source of which appears to have been a clinical nurse consultant (Nurse Parsons). As at March 2014, the Tribunal recorded:

3. [21]

   A Justice Health report dated 22 February 2014 recorded that the respondent had been assessed by Dr Sharon Reutens, a psychiatrist specialising in the treatment of older people. Dr Reutens recorded that the respondent had been reviewed on 4 February, when he was seated in a wheelchair. She commented, however, that his gait was normal, suggesting that he had some capacity to walk unaided. Dr Reutens’ opinion was consistent with that of Nurse Parsons.

4. [22]

   At about the same time, Nurse Parsons reported on her assessment of the respondent. Inter alia, she stated her belief that the respondent had little insight into his “illness symptomatology”, although he was aware of his failing memory.

5. [23]

   There was other medical evidence before Adams J, all to the same effect.

6. [24]

   Adams J further recounted at [15] that amongst his other physical problems the respondent fell in November 2013 sustaining a right hip fracture which required surgery. His Honour noted that the respondent suffered from continuing severe pain from this injury and may require further surgery. The respondent could walk with the aid of a four wheel walker but needed strong analgesic medication.

Reasons of Adams J for nominating a limiting term of 7 years

1. [25]

   Adams J briefly reviewed the circumstances of the killing of the victim, and the evidence of the respondent’s mental state. It is only necessary to mention those observations and findings as are material to the grounds of the Director’s appeal. The relevant passages are:

The grounds of appeal

1. [26]

   The Director has pleaded five grounds of appeal. They are:

2. [27]

   The Director acknowledged that Crown appeals ought to be a rarity (Griffiths v The Queen [1977] HCA 44; 137 CLR 293; Everett v The Queen [1994] HCA 49; 181 CLR 295) and brought for the purpose of laying down principles for the governance and guidance of courts sentencing those who are convicted: more recently stated in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462, citing, inter alia, Griffiths and Everett. The Director proposed that “principles of governance and guidance” must include principles relevant to the avoidance of inadequate sentencing. In my opinion that is a mere generality and does not identify any principle to which this Court should address its attention. In order to succeed, the Director must establish that (in this case) the limiting term nominated was manifestly inadequate - that is, “below the range of sentences that could justly be imposed for the offence consistently with sentencing standards”: Bugmy v The Queen [2013] HCA 37; 249 CLR 571.

3. [28]

   I now turn to deal with the individual specific grounds pleaded on behalf of the Director.

4. [29]

   This ground is founded upon the final sentence in para [5] of the reasons, extracted above.

5. [30]

   Section 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”) sets out mitigating factors which, where relevant and known, must be taken into account in the determination of the appropriate sentence. Sub-paragraph (i) is in the following terms:

6. [31]

   The point sought to be made on behalf of the Director was that a finding that the respondent was remorseful was not open in the light of the whole of the evidence of what the respondent had said following the killing. On behalf of the Director it was submitted that the respondent was “positively unrepentant”. The Director contrasted the evidence, much of which is set out above, of the respondent almost gloating about what he had done, with the minimal statements of remorse.

7. [32]

   In my opinion, if it were the case that his Honour had taken remorse into account as a mitigating factor he would have been in error. What the respondent did say that might qualify as an expression of guilt or remorse was very limited - he was sorry that his daughter had been present and (at one point) stated that he felt guilty. These expressions were entirely swamped by the vitriol that attended his tirade to the 000 operator. In any event, they would not meet the requirements of s 21A(3)(i). While what he said might be interpreted as an acceptance of responsibility, there was nothing to suggest that he acknowledged the injury, loss or damage caused (even to his daughter).

8. [33]

   However, in my opinion, the ground is based upon a misconstruction of what his Honour said. The sentence that concludes [5] could not be said to be a finding of remorse for the purposes of s 21A(3)(i); his Honour simply recorded briefly that the respondent had said that he had no choice but to kill the victim because of her conduct, but had also expressed guilt and remorse. This was not a finding that he was in fact remorseful. It was simply an acknowledgement that the respondent had made some muted expression of guilt and remorse. In my opinion, remorse was not taken into account in the determination of the limiting term. I would therefore reject this ground.

9. [34]

   This ground is founded upon the passage in the reasons at [20].

10. [35]

    At first instance, the Crown had urged that the respondent “poses a real risk of reoffending”.

11. [36]

    The Director maintained that submission on appeal. Reliance was placed on the evidence that the respondent’s dementia is irreversible and will lead to further cognitive decline. The Director referred to evidence that the respondent continued to harbour feelings of resentment towards the victim and towards her family, and that these feelings had not diminished with time.

12. [37]

    The evidence was that the respondent suffered, not only progressive dementia, but also physical ailments. He appeared physically frail. Although it appears that he had some mobility, he presented to medical appointments in a wheelchair. When seen by Nurse Parsons and Dr Welkee Sim, he walked with the aid of a four wheel walker.

13. [38]

    At the time Adams J nominated the limiting term, the respondent was one month short of 69 years of age. He had been in custody for 4 years, during which time (it may be assumed) he had abstained from alcohol consumption.

14. [39]

    In my opinion it was open to his Honour to make the assessment that he did. It may be that the respondent continues to harbour feelings of resentment towards the family of the victim, but his opportunity to translate any such resentment into violent action is, and will remain, virtually nil. I would reject Ground 2.

15. [40]

    This ground is based on the observation by the judge, at [22] of his reasons, in which he stated that “a limiting term that is likely to end after an offender’s understanding of where he or she is and why serves no useful public purpose and is, therefore, pointless”.

16. [41]

    Since the nomination of a limiting term involves the court in making the best estimate of the sentence it would have considered appropriate, following a normal trial of a person fit to be tried (s 23 of the Forensic Provisions Act), the provisions of s 3A of the Sentencing Procedure Act are applicable. Section 3A identifies the purposes of sentencing as:

17. [42]

    On a superficial examination, it may appear that there is some merit in the Director’s contention. The observation by his Honour at [22] concentrates solely on the absence of any purpose to be served by bringing home to the respondent the gravity and consequences of his conduct. It does not mention the other sentencing purposes stated in s 3A. However, it has been held that the purpose of nominating a limiting term is not to punish: R v Mailes [2004] NSWCCA 394; 62 NSWLR 181 at [32]. Accordingly, the first of the stated purposes can be put to one side. It may also be seen that the purposes lettered (b), (c), (d) and (e), also have, in the circumstances of this case, little bearing. Adams J held (and the finding was not challenged) that, by reason of his mental disability, the respondent was an unsuitable vehicle for general deterrence. It follows from the respondent’s progressive dementia, together with the express finding that he would not commit another act of violence, that protection of the community, and rehabilitation, have little (if any) relevance; and there is little to be gained by making an offender suffering from progressive dementia accountable for his actions.

18. [43]

    Adams J was well aware of the purposes of sentencing stated in s 3A. Section 3A does not call for a ritualistic incantation of those purposes, and an express discarding of those that do not apply to the particular case under consideration.

19. [44]

    The Director placed particular relevance on the need to denounce the conduct and recognise the harm done to the victim and to her family, as well as to the community. Failure to have regard to those purposes was an error, the Director argued.

20. [45]

    It seems to me that the denunciation falls into the same category as general deterrence: an offender who is unsuitable, by reason of mental disability, to be a vehicle for general deterrence, is equally unsuitable to be the subject of denunciation. The irrelevance results from the diminished moral culpability, which itself results from the impaired mental capacity of the offender. Recognition of the harm done to the victim, her daughter, and the community certainly had a place in the sentencing exercise. On closer analysis of the reasons, I am not persuaded that that purpose was entirely overlooked. It finds its place in the observations at [7] and [17], extracted above.

21. [46]

    I would reject this ground.

22. [47]

    There is no doubt, as the Director contends, that, leaving aside the respondent’s impaired mental condition, this was an objectively serious example of manslaughter. Adams J said as much at [7]. He commented further on objective seriousness at [17]. The killing was certainly not an impulsive act, and had been at least contemplated, if not planned, for some time. The respondent clearly intended to kill the victim. In order to carry out that intention, he had equipped himself with a rifle, and had driven a distance of 26 kilometres. Having confronted the victim, he returned to the car to retrieve the rifle, for the very purpose of using it to kill her. The victim was shot within earshot of her (and the respondent’s) 7 year old daughter.

23. [48]

    The Director accepted that it can be a difficult task to make a judgment as to the extent to which a mental impairment diminishes responsibility, but urged that, had a proper assessment been made of objective gravity, it would have been apparent that, even allowing for the mental impairment, the crime was a very serious instance of manslaughter. But so much was explicitly recognised.

24. [49]

    Senior counsel who appeared for the respondent, both at first instance and on appeal, referred to further observations made by the judge during the hearing as to the limiting term to be nominated. Although those observations did not find their way into the reasons formally given, it is clear that his Honour did appreciate the objective gravity of the offence.

25. [50]

    The Director must go further than merely show that no finding was made. He must show that the failure to make the finding affected the determination of the limiting term. In my opinion he has not succeeded in doing so. The absence of any quantitative finding of objective gravity in the reasons does not impact on the exercise undertaken of identifying the limiting term to be nominated.

26. [51]

    I would reject this ground of the appeal.

27. [52]

    In order to succeed on this ground, it is necessary that the Director establish that, in all of the circumstances, the limiting term nominated was unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357. Having regard to the respondent’s mental state and deteriorating condition, I would not be prepared to reach such a conclusion. The circumstances of this offence bear a marked similarity to the circumstances of R v Zeilaa [2009] NSWSC 532, in which Howie J sentenced the offender to imprisonment for 4 years and 10 months, with a non-parole period of 2 years and 6 months. I would reject this ground of appeal.

28. [53]

    In my opinion the Crown appeal ought to be dismissed.

29. [54]

    PRICE J: I agree with Simpson J.

30. [55]

    McCALLUM J: I agree with Simpson J.