Citation: Regina v Lever [2000] NSWSC 953
Court: Supreme Court of New South Wales
Date: 6 October 2000
Judge(s): Greg James J
Background
The offender was convicted by jury of the murder of his long-term partner at Fingal, New South Wales, on the night of 15 November 1996. He had beaten her with a baton and a strap, inflicting upwards of 200 blows, and she died as a result. After the attack, the offender summoned an ambulance and, when arrested, spoke to police in a manner the sentencing judge characterised as irrational, grieving, and contrite.
Evidence at trial and on sentence established that the offender had a history of violence against the deceased during their relationship, including at least one incident requiring her hospitalisation. He had also formed beliefs, sometimes with bizarre overtones and apparently without rational foundation, that she was being sexually unfaithful to him. In the months before the killing, those who knew him observed a progressive deterioration in his behaviour, including increasing paranoia focused on his wife.
At trial, the defence raised diminished responsibility under the law then applicable. Two psychiatrists gave evidence: one for the defence (Dr Westmore) supported the defence, while the Crown's psychiatrist (Dr Nielssen) did not. The jury rejected the defence and returned a verdict of guilty of murder. After the verdict, Dr Nielssen revised his opinion and expressed support for the view that the offender had been suffering from a serious mental condition, possibly including a transient psychotic episode, at the time of the killing.
Legal Issues
- Whether the sentencing court could take into account the post-verdict reversal of the Crown's psychiatric opinion when determining the offender's mental state at the time of the killing
- How the jury's rejection of the diminished responsibility defence constrained the factual basis on which sentence could be imposed
- What weight to give the offender's psychiatric condition, personal history (including Aboriginality and prior deprived circumstances), and the early offer of a plea to manslaughter
Decision
Greg James J accepted the revised psychiatric evidence from both Dr Westmore and Dr Nielssen that the offender had been suffering from a serious mental condition at the time of the killing, and that there may have been a transient psychotic episode overlying a more chronic condition. However, the court found that this acceptance was of limited practical effect in sentencing. Relying on the Court of Criminal Appeal's decision in Isaacs (1997) 41 NSWLR 374, his Honour held that a sentencing court may form its own view of the facts provided that view remains consistent with the jury's verdict. Because the jury had specifically rejected the diminished responsibility defence, it was not open to sentence on a factual basis that would have sustained that defence or that the offender was psychotic at the relevant time.
The court was not satisfied that the offender intended to kill the deceased, but found that the sheer scale of the beating established, at minimum, an intention to cause grievous bodily harm. The episode was characterised as atypical and aberrant even in light of the offender's prior violent history, but objective seriousness remained high. The court also found that the offender was not affected by drugs or alcohol in a way that would mitigate his culpability.
In arriving at the sentence, the court took into account several mitigating factors. These included the offender's mental condition (to the extent permissible), his Aboriginality and prior deprived circumstances, prospects for rehabilitation, time spent in custody on remand (251 days under conditions described as particularly onerous), and the early offer of a plea of guilty to manslaughter by reason of diminished responsibility. The Crown accepted the offender should be treated as though that early plea had been made. Special circumstances were found to exist, warranting a non-parole period that was proportionally longer relative to the total sentence than the statutory norm.
Orders Made
- Total sentence of 13 years imprisonment, with a non-parole period of nine years
- Non-parole period commencing 30 November 1999, expiring 29 November 2008
- Parole period of four years from 30 November 2008
- Recommendation that the offender be afforded psychiatric or psychological treatment as available during imprisonment
Key Takeaways
- A sentencing court may form its own factual findings on psychiatric evidence presented after verdict, but only to the extent those findings remain consistent with the jury's verdict. Where a jury has specifically rejected a defence of diminished responsibility, sentencing on a basis that accepts the facts underpinning that defence is not available.
- The post-verdict reversal of the Crown's own psychiatric expert created an unusual evidentiary situation, yet the court found it could not overcome the constraints imposed by the jury's findings.
- Where a plea of guilty to a lesser charge was offered early but rejected by the Crown, and subsequent evidence suggests that plea may well have been accepted had full inquiry occurred at the time, the court treated the offender as entitled to the benefit of that early offer.
- The Supreme Court confirmed that an offender's Aboriginality, prior deprived circumstances, mental condition, and prospects for rehabilitation are all relevant considerations in identifying special circumstances justifying adjustment of the non-parole period.
- Time spent in pre-verdict custody on remand, described here as operating in a "most onerous fashion," was taken into account in reducing both the non-parole period and the total sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
Cases:
- Regina v Isaacs (1997) 41 NSWLR 374 (Court of Criminal Appeal)
- Cheung (Court of Criminal Appeal, unreported, 11 December 1995)
- De Souza (Dunford J, unreported, 10 November 1995)