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Supreme Court 12 October 2001

R v Santos

[2001] NSWSC 923

Homicide
SENTENCE MANSLAUGHTER S 23A CRIMES ACT 1900

Citation: R v Santos [2001] NSWSC 923
Court: Supreme Court of New South Wales
Date: 12 October 2001
Judge(s): Levine J

Background

The offender was charged with the murder of the deceased at a car park in Bankstown on 23 October 2000. The killing occurred during a period of marital separation, after the offender approached the deceased to confront him about a suspected relationship with his wife. Following an exchange of words, the offender produced a knife and stabbed the deceased 21 times, pursuing him to the ground and continuing the attack until two police officers arrived.

The Crown accepted a plea of not guilty to murder but guilty to manslaughter on the basis of the partial defence under section 23A of the Crimes Act 1900, which reduces liability from murder to manslaughter where the offender's capacity was substantially impaired by an abnormality of mind arising from an underlying condition. The offender had sustained a significant brain injury in 1991 and was also suffering from depression at the time of the killing.

Sentencing proceeded before Levine J on 9 and 11 October 2001, with the Court required to weigh the serious objective criminality of the homicide against the offender's substantially diminished culpability.

  • Whether the facts established the ingredients of murder beyond reasonable doubt, as required before the section 23A defence can reduce liability to manslaughter
  • Whether the offender's impairment at the time of the offence met the statutory threshold under section 23A, that is, whether it arose from a pre-existing underlying condition and was sufficiently substantial to warrant reduction of liability
  • What intent (to kill or to cause grievous bodily harm) should be found on the evidence, for sentencing purposes
  • How the objective gravity of the homicide should be assessed, and how it should be weighed against the offender's subjective circumstances, including the section 23A impairment, a plea of guilty, and other personal factors
  • Whether special circumstances existed warranting an adjustment to the non-parole period

Decision

Levine J was satisfied beyond reasonable doubt that the facts established murder. The nature of the attack, including the offender seizing the deceased by his clothing, continuing to stab him as he fell, and kneeling over him while he was on the ground, was consistent with an intention to kill formed at the point when the offender lost control. Despite submissions from defence counsel, the Court found the objective criminality of the homicide to be high, not low.

The Court accepted the psychiatric and psychological evidence of Dr Wilcox, Dr Lucas, and clinical forensic psychologist Mr Taylor on the section 23A question. It was satisfied on the balance of probabilities that the offender's capacity to understand events and to control himself was substantially impaired at the time by an abnormality of mind arising from two underlying conditions: depression, and the sequelae (lasting effects) of the 1991 brain injury. Both conditions were pre-existing and not transitory, satisfying the statutory requirements.

In weighing these factors, Levine J acknowledged the tension between the serious nature of the killing and the substantial mitigation provided by the section 23A finding. The Court also took into account the guilty plea, the offender's remorse, his history, and the absence of prior relevant criminal history, but declined to find special circumstances that would warrant altering the standard ratio between the non-parole period and the total sentence. The offender's intent was determined to be an intention to kill rather than merely to cause grievous bodily harm, consistent with the Crown's submissions.

A Victim Impact Statement from the deceased's family was received and formally acknowledged by the Court. The total sentence was fixed at seven years imprisonment, with a non-parole period of five years and three months. The Court expressed that parole conditions should include supervision relating to treatment for depression or any other relevant psychiatric condition.

Orders Made

  • The offender was convicted of manslaughter.
  • Sentenced to seven years imprisonment, commencing 23 October 2000 and expiring 22 October 2007.
  • Non-parole period fixed at five years and three months, expiring 22 January 2006, at which point the offender would be eligible for release on parole.
  • Parole to include conditions for supervision and treatment of depression or any other psychiatric condition identified as requiring management.

Key Takeaways

  • Under section 23A of the Crimes Act 1900, a plea to manslaughter on the basis of substantial impairment requires the court first to be satisfied beyond reasonable doubt that the facts establish murder, and then to be satisfied on the balance of probabilities that the impairment arose from a pre-existing, non-transitory underlying condition.
  • Brain injury sustained years before an offence, combined with depression, can together constitute the "underlying condition" required by the substantial impairment defence, provided the impairment was operative at the time of the act causing death.
  • The Supreme Court treated the objective criminality of the homicide as high, notwithstanding the section 23A finding, noting that the sustained and unrelenting nature of the attack remained a significant aggravating feature even where culpability was reduced.
  • No special circumstances were found to exist, and the standard non-parole to total sentence ratio was maintained, reflecting the serious nature of the offence even after reduction from murder.
  • Where psychiatric and psychological conditions are identified during sentencing, the court may direct that prison and parole authorities be provided with relevant medical material to enable appropriate treatment and management regimes to be established.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind as partial defence to murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25 (Victim Impact Statements)

Cases:
- R v Blacklidge (unreported, 12 December 1995)
- R v Connolly [2001] NSWSC 787
- R v Dawney [1999] NSWSC 944
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Veech [2001] NSWSC 68