Laurie v R

HOEBEN CJ at CL:

On 16 December 2005 Mathews AJ sentenced the applicant to imprisonment with a non-parole period of 15 years and a balance of term of 9 years. The non-parole period was to commence on 7 June 2003 and expire on 6 June 2018, with the balance of term to expire on 6 June 2027.

The applicant seeks leave to appeal against that sentence out of time. He relies upon the following grounds of appeal:

In June 2003 both the applicant and the deceased were residents of Lowther Lodge, a residential hostel at Brookfield, for people with intellectual handicaps. The deceased had been at Lowther Lodge since it opened in 1983. The applicant had been there for approximately 18 months. The Lodge was under the daily care of Mr Ian Edwards and his wife Christine, who lived in a separate residence on the same property. Representatives of Home Care also attended the Lodge on a regular basis to assist the residents in their normal daily routine.

On the evening of 6 June, the residents had retired to their respective bedrooms for the night in the normal manner. The applicant and the deceased had bedrooms in the same section of the Lodge, which they shared with one other person. Sometime in the early hours of the next morning, probably at around 5 o’clock, the applicant went to the communal toilet in that section of the building. The deceased, who was already in the toilet, made some comment to the applicant which for no obvious reason completely enraged him. The applicant pushed the deceased against the wall and punched him around the face and then pushed him down to the ground and started kicking him. The deceased was still able to move and ran back to his room. The applicant also returned to his room.

Sometime later the applicant went to the deceased’s room, pulled him out of bed and proceeded to kick him, stamp on him and hit him with a chair. When he realised that the deceased was almost certainly dead, he returned to his room.

A little later Mr Edwards came out of his residence. The applicant called him over and said “You’d better come and check Jeffrey”. Mr Edwards went into the deceased’s room and found his body surrounded by a large amount of blood.

At a post mortem examination Dr Lee noted no less than 46 signs of recent injury. He concluded that the cause of death was blunt head and neck injury. He made the following observations:

When the police arrived at Lowther Lodge and interviewed the applicant, he freely admitted to killing the deceased, as he did in a later electronically recorded interview. When asked why he did it, the applicant could only say that he was so angry and in such a rage that he just had to kill the deceased. He was unable to give any coherent account of what had caused this rage except that it was something that the deceased had said to him in the toilet.

At one point he was asked "Were you thinking clearly" and he responded, "Yeah, thinking clearly. I knew exactly what I was doing." A little later he was asked whether he knew that what he was doing was wrong and he responded "Yeah I did know. Actually I didn't think about it, I just did it. I just really felt the anger." Later he was asked again whether at the time of assaulting the deceased he realised that what he was doing was wrong. This time he said, "No, I didn't actually, no."

The issue at the trial was whether the applicant's liability for murder should be reduced to manslaughter by reason of s23A of the Crimes Act 1900. Under this section a person who would otherwise be guilty of murder is not to be convicted of murder if at the time of the offence the person's capacity to understand events, or to judge whether his actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition; and the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

The applicant was born in November 1962. He is mildly to moderately mentally retarded, a condition which he has had since birth. His mother suffered from schizophrenia. She and the applicant's father separated when he was quite young and she generally cared for him when he was not in institutions. His father died in 2003. By reason of his disabilities, the applicant is incapable of independent living. He had no significant previous convictions.

From the age of 18, the applicant had a series of psychiatric admissions. Many of them related to alcohol abuse and to withdrawal from severe alcohol abuse. A report in the year 2000 raised the possibility that he was suffering from schizophrenia. Dr O'Dea, a psychiatrist called by the Crown at the trial, noted that the applicant's developmental disabilities included problems with both intellectual and social functioning. He appeared to have a longstanding history of at least intermittent problems controlling his anger and impulsive behaviour. Given his family history, the doctor commented that he was at increased risk of developing a psychotic illness such as schizophrenia, but that the symptoms noted in the psychiatric reports which he had seen were not of a typical schizophrenic syndrome. Dr O’Dea considered it probable that at the time of the offence the applicant's ability to control himself was substantially impaired. This impairment arose from his mental retardation which was in turn caused by a defect in the structure or function of his brain, and was thus an underlying condition under s23A.

This opinion was shared by the two psychiatrists called in the defence case, Dr Westmore and Dr Nielssen. They also considered that the applicant was probably suffering from a form of schizophrenia. They thought that the applicant's capacity to judge whether his actions were right or wrong might have been substantially impaired so as to bring him within another limb of s23A. Because all three psychiatrists agreed that there was a substantial impairment in his capacity to control himself, this was not explored further.

As can be seen, the evidence at the trial was all one way as to the requirements of subs (1)(a) of s23A. It was common ground that the ability of the applicant to control himself was substantially impaired within the meaning of that provision. The issue in contention was whether the impairment was “so substantial as to warrant liability for murder being reduced to manslaughter” as required by subs (1)(b). It was this issue which was decided adversely to the applicant by the jury.

Mathews AJ had regard to s21A of the Crimes (Sentencing Procedure) Act 1999. She rejected the suggestion that the applicant’s conduct involved gratuitous cruelty and that the deceased was vulnerable because of his disability. Her Honour reached that conclusion having regard to the applicant’s disability. In relation to mitigating features under s21A, her Honour found that the offence was not part of a planned or organised criminal activity, that the applicant had no significant criminal record and that he was a person of good character. Her Honour concluded that the killing of the deceased was an unpremeditated action.

In relation to the applicant’s intent, her Honour concluded:

Her Honour noted that all three psychiatrists agreed that the killing of the deceased was the direct result of the applicant’s inability to control himself, which in turn was caused by his disability. She took into account that the applicant was taking anti-psychotic and anti-depressant drugs at the time of the killing. Her Honour noted that the applicant had been kept in the Developmentally Delayed Unit in the Special Purpose Centre at Long Bay prison since he was taken into custody. There he was receiving high doses of anti-psychotic medication and moderate doses of anti-depressant medication which appeared to have stabilised his condition. The psychiatrists agreed that the applicant would be unable to function without support within the prison system, or live independently after his release. Her Honour concluded that the applicant would need a more structured and supervised environment on his release than that which was provided at Lowther Lodge.

Her Honour summarised the application of sentencing principles as follows:

The applicant has served the past 12 years of his sentence at the Long Bay Correctional Centre, except for a four week period in 2012 when he was transferred to the Metropolitan Remand and Reception Centre (MRRC). He has been held in the Intellectual Disability Unit and from October 2006 in the Additional Support Unit (ASU). This is a unit intended for the custody of persons with intellectual disabilities and various forms of mental illness.

During that time, the applicant has been involved in breach of discipline matters on four occasions. The only serious breach was in 2010 for fighting with another inmate, whom the applicant said was attempting to “stand over” him. The applicant has obtained five certificates while in custody relating to employment skills, contemporary art and craft, music presentation and participation in learning.

A report relating to the applicant’s participation in work and education, dated 12 December 2013, provides an insight into his performance while in prison:

The applicant continues to receive antipsychotic medication for his schizophrenia by way of fortnightly intra-muscular injection. Justice Health notes indicate that alternative antipsychotic medications have been given to the applicant by injection and attempts have been made to reduce his dose, however, he has subsequently suffered a recurrence of psychotic symptoms and his dose level has been increased. He was found in his cell in May 2011 with a break and dislocation of his right shoulder and a break of his left humerus, which was suspected to have been due to a seizure which he suffered.

There have been a number of instances when ASU staff have assessed the applicant as being at risk of self harming and have referred him for closer monitoring in a safe cell environment. The applicant was placed under close observation following his mother’s death by suicide in September 2010. The applicant self harmed by cutting himself with a cup in November 2011 and by swallowing a disposable shaver cartridge in April 2012. The most recent instance of self harm occurred on 15 August 2014 when he cut his left wrist with a shaver.

On 3 April 2006 the applicant filed a Notice of Intention to Appeal in relation to his sentence. Legal Aid was refused on 28 August 2006, based on the decision in R v Way [2004] NSWCCA 131; 60 NSWLR 168.

The decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 was handed down by the High Court on 5 October 2011. The decision in Achurch v R (No 2) [2013] NSWCCA 117; 84 NSWLR 328 was handed down on 22 May 2013. The effect of that decision was that an appeal against sentence had to be brought in this Court.

On 26 June 2013 counsel advised in relation to an appeal against sentence based on “Muldrock error”. A notice seeking Leave to Appeal Against Sentence out of time was filed on 28 June 2013.

Further delay occurred while Kentwell v The Queen [2014] HCA 37; 313 ALR 451 and O’Grady v The Queen [2014] HCA 38 were considered and decided. Following judgment in those matters, steps were taken to obtain a hearing date for the appeal.

I am satisfied that “Muldrock error” has occurred in this matter. When one looks at what the primary judge said at [27] – [28] of her sentencing judgment, it is clear that her Honour took as her starting point the standard non-parole period and then adjusted it by reference to other considerations. This constitutes a clear example of the two-step sentencing process which was expressly disapproved in Muldrock. Accordingly, the applicant has been successful in establishing error.

In view of the applicant’s particular circumstances, i.e. his disability, there can be no personal responsibility on his part for any delay. Of necessity he has relied entirely upon his legal advisers to progress the matter.

By reference to the procedural history set out above, I am of the opinion that the applicant’s legal advisers have behaved reasonably in taking the steps which they have on his behalf and despite the substantial length of the delay, its occurrence is readily explainable. While the law was as set out in R v Way, the approach followed by the primary judge was unexceptionable and any appeal was doomed to failure. That situation changed following Muldrock. The steps taken by the applicant’s legal advisers following the decision in Muldrock, while not being particularly expeditious were reasonable in the circumstances.

Taking those matters into account, and also that “Muldrock error” has been established, I am satisfied that an extension of time for the seeking of leave to appeal against sentence should be granted. In accordance with the guidance provided by Kentwell v The Queen, the interests of justice require that an extension of time be granted.

Since error has been identified in the sentence proceedings, s6(3) of the Criminal Appeal Act 1912 applies. Explicit guidance was provided in Kentwell as to how s6(3) should be applied in circumstances such as these:

The applicant submitted that the sentence imposed by the primary judge failed to give sufficient weight to his intellectual and mental disabilities. In addition, he submitted that the sentence was manifestly excessive. The applicant submitted that the decision in Muldrock, apart from overruling the approach in Way, also provided significant guidance as to how to approach the sentencing of offenders who have an intellectual disability. The applicant submitted that it was clear from the statements in Muldrock that significant weight had to be given to the presence of an intellectual disability because of the impact which it had on moral culpability and therefore the objective seriousness of an offence. The applicant noted that at his trial there was no issue that he was “substantially impaired” at the time that he killed the deceased and that this impairment was causally related to the offence. The applicant drew the Court’s attention to his composite IQ assessment of 64, and the evidence of Dr Nielssen at trial that “he has a child like level of understanding of right and wrong”.

The applicant’s submission that the sentence was manifestly excessive is based on the same considerations.

A submission to the effect that a sentencing judge has given “insufficient weight” to a factor or principle has within it an acceptance that the judge has in fact considered the factor or principle. Once that is accepted, the task of establishing that insufficient weight has been given in that consideration confronts considerable difficulty. As the plurality (Gleeson CJ, Gummow, Hayne and Callinan JJ) said in Markarian v R [2005] HCA 25; 228 CLR 357 at [27]:

I am not persuaded that the primary judge gave insufficient weight to the applicant’s intellectual and mental disability. Her Honour carefully recorded the evidence and her application of legal principle was accurate and appropriate. That, however, does not end the matter. As Kentwell v The Queen made clear, the exercise to be carried out by this Court does not involve an analysis of the reasons of the primary judge. Once error has been identified, this Court is required to re-exercise for itself the sentence discretion and to determine whether a lesser sentence is warranted in law.

The evidence that the applicant has an intellectual disability and suffers from some degree of mental illness is overwhelming. As her Honour appreciated and as has been submitted by the applicant, the principles of general deterrence and denunciation have little weight. The difficulty in sentencing is that the applicant comes within that category of individuals who pose such a high risk of serious offending, apparently without the understanding or the ability to control their own behaviour, that the demands of protection of society must be given considerable weight. There is a real tension between that consideration and the need for the sentence to conform to an appropriate assessment of the moral culpability of the offender.

Some assistance on that issue is provided in Veen v R (No 2) [1988] HCA 14; 164 CLR 465 at [13] where the plurality (Mason CJ, Brennan, Dawson and Toohey JJ) said:

Observations to similar effect were made by Gleeson CJ in R v Engert (1995) 84 A Crim R 67 at 71 where his Honour said:

The reference by Gleeson CJ to the “commencement of the judgment” is to what his Honour said at p69.6 of the judgment as follows:

For the purposes of this application, it should be noted that the diminution of the weight attached to, or even the removal of, general deterrence, denunciation and retribution as factors in the sentencing process may, but not necessarily will, lead to a lesser sentence being imposed. Although Gleeson CJ’s comments in Engert concerned persons suffering from a mental disorder, they are equally applicable to persons who have an intellectual disability or as in this case, are affected by both. It follows that the greater weight that attaches to factors such as the need to protect the community and the prospects of rehabilitation which flows from the diminution in weight attaching to other facts, does not necessarily operate in the applicant’s favour.

It is clear from the Corrective Services notes that the applicant’s time in prison has not led to any significant change in his condition. His response to medication has fluctuated and the instances of self harm are disturbing. On my reading of the Corrective Services notes, I do not detect improvement in the applicant’s condition, most particularly, there does not seem to be any change in the unpredictability in his conduct which was part of the problem facing her Honour. This is despite the fact that the applicant has been living in a very closely controlled environment and has been compliant when taking his medication.

Doing the best I can in reconciling those competing considerations, and in the re-exercise of the sentencing discretion, the orders which I propose are as follows:

HALL J: I agree with Hoeben CJ at CL.

WILSON J: I agree with Hoeben CJ at CL.