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Supreme Court 13 December 2001

Regina v Samuel Noel LEVER

[2001] NSWSC 1131

HomicideDomestic & family violence
SENTENCE

Citation: Regina v Samuel Noel LEVER [2001] NSWSC 1131
Court: Supreme Court of New South Wales (Criminal Division)
Date: 13 December 2001
Judge(s): Bell J

Background

The offender was charged with the murder of his wife at Fingal on 15 November 1996. He had administered an extensive and severe beating over a sustained period, causing her death from blood loss and shock. The post-mortem examination estimated several hundred blows, inflicted with multiple weapons including a rubber strap and a baton-like object, as well as blunt force consistent with fists or feet.

This sentencing judgment followed a retrial. At an earlier trial in 1999, a jury had found the offender guilty of murder, and he was sentenced to 13 years imprisonment with a nine-year non-parole period. That conviction was subsequently re-examined, and at the retrial before Bell J, the jury returned a verdict of not guilty of murder but guilty of manslaughter.

The central issue at both trials was the partial defence of diminished responsibility under s 23A of the Crimes Act 1900 (as it then stood). The offender, an Aboriginal man aged 36 at the time of the offence, had been suffering from a delusional disorder involving fixed false beliefs, including that his wife was unfaithful and that his family was being harassed by unknown intruders.

  • What sentence was appropriate for manslaughter where the offender's mental responsibility was substantially impaired by a delusional disorder at the time of the killing?
  • To what extent did the offender's psychiatric condition reduce the weight to be given to deterrence and retribution as sentencing considerations?
  • Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 to justify departing from the standard proportion between the total sentence and the non-parole period?
  • How should the offender's time on remand be treated in calculating the commencement date of the sentence?

Decision

Bell J sentenced the offender on the basis that he had caused his wife's death by deliberate acts carried out with the intention of inflicting grievous bodily harm. The court was not satisfied beyond reasonable doubt that the offender intended to kill, as distinct from causing serious injury. However, the severity and duration of the beating were not in dispute.

Bell J found that the offender's mental responsibility was substantially impaired by his delusional disorder. The delusions, combined with deteriorating mental health throughout 1996, months of broken sleep, and severe anxiety, placed the degree of impairment at a high level. Drawing on the principles in Regina v Letteri and Regina v Engert, the court held that considerations of deterrence and retribution therefore played only a limited role in the sentencing exercise.

The psychiatric evidence, particularly the oral evidence of Dr Davies, supported a finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999. This justified a departure from the standard statutory proportion between the head sentence and the non-parole period, resulting in a longer parole period to allow for ongoing supervision and rehabilitation. The court directed that the sentence commence on 11 March 1999, accounting for the offender's time in custody on remand.

Bell J also received and considered a victim impact statement from the deceased's parents under s 28 of the Crimes (Sentencing Procedure) Act 1999, applying the guidance in Regina v Previtera. The statement recorded the profound loss suffered by the deceased's family, including her six children.

Orders Made

  • The offender was sentenced to 10 years imprisonment, commencing 11 March 1999.
  • A non-parole period of six years was specified.
  • The first date upon which the offender was eligible for release on parole was 10 March 2005.

Key Takeaways

  • Where an offender's mental responsibility is substantially impaired by a delusional disorder at the time of the killing, the sentencing court may afford deterrence and retribution only a limited role, consistent with the principles in Regina v Letteri and Regina v Engert.
  • A partial defence of diminished responsibility under s 23A of the Crimes Act 1900 (as it then stood) does not require a finding of mental illness; it operates to reduce murder to manslaughter where the offender's mental responsibility was substantially impaired by an abnormality of mind.
  • Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 can justify departing from the standard proportion between the head sentence and the non-parole period, particularly where psychiatric evidence supports the need for extended post-release supervision.
  • Under s 47 of the Crimes (Sentencing Procedure) Act 1999, time spent in custody on remand that is wholly referable to the subject offence is to be reflected in the commencement date of the sentence imposed.
  • A retrial resulting in a manslaughter verdict, after an earlier murder conviction, requires the sentencing court to approach penalty afresh on the basis of the lesser offence; the sentence imposed on the retrial need not mirror the earlier, more serious outcome.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23A (diminished responsibility, as it then stood)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 28, 44(2), 47

Cases:
- R v Blacklidge (unreported) NSWCCA, 12 December 1995
- R v Edwards (1996) 90 A Crim R 510
- Regina v Engert (1995) 84 A Crim R 67
- Regina v Fernando (1992) 65 A Crim R 98
- Regina v Letteri (unreported) NSWCCA, 18 March 1992
- Regina v Previtera (1997) 94 A Crim R 76
- Veen (No 2) v The Queen (1987/88) 164 CLR 465