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Supreme Court 13 December 2001

Regina v Ray

[2001] NSWSC 1145

Homicide
MANSLAUGHTER KILLING BY INJECTION OF MORPHINE SPECIAL CIRCUMSTANCES HEALTH OF PRISONER CIRCUMSTANCES OF IMPRISONMENT

Citation: Regina v Ray [2001] NSWSC 1145
Court: Supreme Court of New South Wales
Date: 13 December 2001
Judge(s): O'Keefe J

Background

The prisoner was convicted by jury of the manslaughter of his mother following her death on 14 November 1997. She died from the combined effects of alcohol she had consumed and morphine the prisoner had injected into her. The deceased had a long history of severe migraine headaches and had received various medications, including pethidine, from doctors over the years.

The Crown advanced the manslaughter charge on two alternative bases. First, that the injection amounted to an assault because the deceased had not consented to it. Second, that even if consent had been given, the act was still unlawful and dangerous because the morphine was not prescribed for the deceased and had been unlawfully supplied by the prisoner, and injecting such a substance as a layperson was inherently dangerous.

The jury's verdict did not specify which pathway it had accepted. What was established by the verdict was that the prisoner deliberately injected the deceased with morphine, causing her death, but without any intention to kill or inflict grievous bodily harm.

  • What standard of proof applies to disputed facts at a sentencing hearing, particularly those that aggravate or mitigate the penalty?
  • On which factual basis could the court sentence the prisoner, given the jury's general verdict?
  • What weight should be given to the prisoner's health, the circumstances of his imprisonment, and other mitigating factors in determining the appropriate sentence?
  • Whether special circumstances existed to justify reducing the standard non-parole period.
  • What use, if any, could be made of the victim impact statement in determining the penalty?

Decision

O'Keefe J applied the standard established in Regina v Storey (1997), confirmed as consistent with New South Wales law in Regina v Isaacs (1997): facts adverse to the prisoner's interests must be proved beyond reasonable doubt, while facts favourable to the prisoner need only be established on the balance of probabilities. The court noted that this standard attaches to the relevant issue rather than to each individual fact that bears upon it.

On the facts, O'Keefe J rejected the prisoner's claim that he could not remember the critical events of the night in question. The court found his record of interview demonstrated he was "shifty, evasive and inconsistent," and that his earlier account to his sister made clear he had injected his mother with morphine at approximately 11 o'clock the night she died. The court accepted that the prisoner's purpose in administering the injection was to relieve his mother's migraine, not to cause her harm.

In determining sentence, the court considered the objective seriousness of the offence alongside a range of mitigating factors. These included the prisoner's health, the specific circumstances of his imprisonment, and other personal factors. These combined to reduce what might otherwise have been a longer term.

Regarding the victim impact statement from the deceased's daughter, O'Keefe J acknowledged it with sympathy but, in accordance with established authority, did not use it to increase or otherwise alter the penalty. Notably, the deceased's daughter expressed support for her brother and advocated against his imprisonment.

Orders Made

  • The prisoner was sentenced to imprisonment for 7 years and 6 months, commencing 23 April 2001 and expiring 22 October 2008.
  • The non-parole period was fixed at 4 years, expiring 22 April 2005, with the prisoner eligible for parole from 23 April 2005.

Key Takeaways

  • At a sentencing hearing in New South Wales, disputed facts that are adverse to the offender must be established beyond reasonable doubt; facts favourable to the offender need only be proved on the balance of probabilities.
  • A general jury verdict of manslaughter does not preclude the sentencing court from examining the factual basis of the killing, provided it applies the correct standard of proof to any disputed matters.
  • Where a prisoner injects another person with morphine not prescribed for that person, and death results, the act constitutes an unlawful and dangerous act capable of founding a manslaughter conviction regardless of whether consent to the injection was given.
  • Special circumstances relating to a prisoner's health and conditions of imprisonment can justify reducing the non-parole period below the conventional proportion of the head sentence.
  • In line with Regina v Previtera (1994) and Bollen v Regina (1998), the Supreme Court confirmed that a victim impact statement is not to be used as a basis for increasing penalty or as confirmation that an otherwise determined sentence is appropriate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Regina v Storey (1997) 89 A Crim R 519
- Regina v Isaacs (1997) 90 A Crim R 587
- R v Hill (1980-1981) 3 A Crim R 397
- R v Dodd (1991-1992) 57 A Crim R 349
- R v Blacklidge (NSWCCA, 12 December 1995, unreported)
- Veen (No 2) v The Queen (1988) 164 CLR 465
- Todd v The Queen [1982] 2 NSWLR 517
- Mill v The Queen (1988) 166 CLR 59
- Regina v Rusbhy [1977] 1 NSWLR 594
- Regina v Hill (1981) 3 A Crim R 402
- Regina v Sellen (1991) 57 A Crim R 313
- Regina v AB No 2 [2000] NSWCCA 467 (unreported, 7 December 2000)
- Regina v Previtera (1994) 76 A Crim R 76
- Bollen v Regina (1998) 99 A Crim R 510