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Supreme Court 26 February 1999

Regina v Gunes

[1999] NSWSC 130

Homicide
MURDER MANSLAUGHTER PLEA DIMINISHED RESPONSIBILITY SPECIAL CIRCUMSTANCES

Citation: Regina v Gunes [1999] NSWSC 130
Court: Supreme Court of New South Wales
Date: 26 February 1999
Judge(s): Newman J

Background

The accused, a 35-year-old man of Turkish background, was originally charged with the murder of his father at the family home in Mangerton in December 1997. The killing arose from a prolonged family dispute, involving contested jewellery and household goods connected to the accused's marriage. On the evening of the offence, a physical fight broke out between the accused and his father, after which the accused poured petrol over his father and set him alight, causing fatal burns.

Police had warned the accused to stay away from his father earlier that same day, having observed him pawning jewellery that his father alleged had been taken by threat. The accused's mother was absent, receiving hospital treatment, when the events unfolded.

The Crown accepted a plea of not guilty to murder and guilty to manslaughter on the basis of diminished responsibility, treating that plea as full satisfaction of the indictment. The matter came before Newman J for sentencing.

  • Whether the Crown's acceptance of the manslaughter plea on the basis of diminished responsibility was appropriate given the evidence of the accused's psychiatric condition
  • What sentence was appropriate for a manslaughter conviction of an exceptionally violent kind, where the offender suffered from a severe mental illness at the time of the offence
  • Whether special circumstances existed warranting a departure from the standard ratio between minimum and additional terms under the Sentencing Act

Decision

Newman J accepted that the Crown's acceptance of the diminished responsibility plea was "undoubtedly proper." The psychiatric evidence established that the accused suffered from a serious psychotic condition, described as a personality deterioration of probable schizophrenic origin, with a documented history stretching back to at least 1988. At the time of the offence, his abnormality of mind very substantially impaired his criminal responsibility.

The sentencing court acknowledged that, given the depth of the accused's psychosis at the time of the offence, general deterrence carried very little weight in the sentencing exercise. The court drew on the principle established in Regina v Scognamiglio (1991) that deterrence diminishes in significance where an offender's mental illness substantially reduces moral culpability. The accused also showed some contrition, which was taken into account.

Despite those mitigating factors, Newman J emphasised that the objective gravity of the offence could not be set aside. Death caused by deliberately setting a person alight was described as "grotesque," and community expectations required a sentence of real substance. Balancing the objective and subjective factors, the court settled on a head sentence of twelve years.

Newman J found special circumstances, justifying an additional term longer than the minimum. The court noted that the accused's underlying psychiatric condition meant that decisions about parole would require careful, current psychiatric assessment by the Offenders Review Board at the relevant time. The sentence was backdated to the date of the accused's arrest, 3 December 1997.

Orders Made

  • Conviction entered for manslaughter on the basis of diminished responsibility
  • Head sentence of twelve years' penal servitude
  • Minimum term of five years, commencing 3 December 1997 and expiring 2 December 2002 (at which point the accused would be eligible for parole consideration)
  • Additional term of seven years, commencing 3 December 2002 and expiring 2 December 2009
  • Sentence backdated to 3 December 1997

Key Takeaways

  • Where an offender's abnormality of mind at the time of the offence substantially reduces moral culpability, the sentencing court may give very little weight to general deterrence, consistent with the principle in Regina v Scognamiglio.
  • Diminished responsibility as a basis for accepting a manslaughter plea in discharge of a murder indictment remains appropriate where psychiatric evidence clearly supports a finding of substantial impairment, even in cases involving extreme violence.
  • A finding of special circumstances under the Sentencing Act can justify an additional term exceeding the minimum term, particularly where ongoing psychiatric risk makes supervised parole an important community protection mechanism.
  • The objective gravity of a homicide committed by fire was treated as a factor demanding a sentence of real substance, notwithstanding the significant weight given to the offender's mental illness.
  • The Supreme Court signalled that parole decisions in cases involving residual psychiatric risk require up-to-date clinical assessment, and eligibility for release at the end of the minimum term is not guaranteed.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW): sets the maximum penalty of 25 years' penal servitude for manslaughter
- Sentencing Act (NSW): governs the structure of minimum and additional terms, including findings of special circumstances

Cases
- Regina v Scognamiglio (1991) 56 A Crim R 81: cited for the proposition that general deterrence carries diminished weight when an offender's mental illness substantially impairs criminal responsibility