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Supreme Court 4 March 2002

R v Brian Joseph Murphy

[2002] NSWSC 150

Homicide
PLEA OF GUILTY TO MANSLAUGHTER SUBSTANTIAL IMPAIRMENT RELEVANCE OF GENERAL DETERENCE FUTURE DANGEROUSNESS PLEA OF GUILTY SPECIAL CIRCUMSTANCES

Citation: R v Brian Joseph Murphy [2002] NSWSC 150
Court: Supreme Court of New South Wales
Date: 4 March 2002
Judge(s): Buddin J

Background

The offender was charged with the murder of his estranged wife's new partner at Umina on 27 May 2001. The offender and his wife had separated in late 2000 after she initiated divorce proceedings, and he had become deeply depressed upon learning of her new relationship. The relationship between the offender, his former wife, and the deceased had been volatile in the months leading up to the killing.

In the early hours of 27 May 2001, the offender entered his former matrimonial home through an unlocked back door and stabbed the deceased multiple times while he lay in bed. The deceased suffered seven stab wounds and died from massive blood loss caused by injuries to his heart, lungs, and liver. The offender remained at the scene and surrendered immediately to police upon their arrival.

The offender pleaded not guilty to murder but guilty to manslaughter. The Crown accepted that plea in full satisfaction of the indictment, based on psychiatric evidence establishing that the offender's capacity to control his actions was substantially impaired by a major depressive illness, engaging the partial defence under section 23A of the Crimes Act 1900 (the substantial impairment provision that reduces murder to manslaughter where an abnormality of mind substantially impairs the offender's capacity to control their conduct).

  • What weight should general deterrence receive in sentencing where the offender's mental illness substantially impaired his capacity to control his actions?
  • What role, if any, should future dangerousness play in the sentence?
  • What discount was appropriate for the plea of guilty, including whether a further discount for contrition was warranted?
  • Whether "special circumstances" existed under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 to justify departing from the standard non-parole period ratio (that provision allows the court to set a longer-than-usual parole period where circumstances warrant it).
  • What was the appropriate head sentence within the identified range for manslaughter by substantial impairment?

Decision

Buddin J accepted the psychiatric evidence of Dr Westmore and Dr Nielssen, both of whom diagnosed the offender with a major depressive illness at the time of the offence. The court found the offender's moral culpability to be significantly reduced by that illness and, applying established authority, held that the role of general deterrence is diminished where an offender's mental condition substantially contributed to the offending. The offender had also not been taking his prescribed medication at the time of the killing, a factor noted in the context of his mental state.

On the question of future dangerousness, the court identified this as a sentencing consideration in appropriate cases, but found it carried no significant weight here. The psychiatric evidence indicated the offender was not likely to present an ongoing danger to the community, particularly if he continued treatment.

The court allowed a 25 percent discount for the plea of guilty, taking into account both the utilitarian value of the plea and an element of contrition. Both prosecuting and defence counsel agreed the range for the head sentence in comparable substantial impairment manslaughter cases ran from approximately five years to thirteen years imprisonment. The court accepted the defence submission that this case fell toward the lower end of that range, given the reduced culpability, the absence of prior violence, and the offender's psychiatric condition.

Special circumstances were found to exist, principally because both psychiatrists identified a need for ongoing counselling and long-term anti-depressant medication, and because this was the offender's first period of imprisonment. The finding of special circumstances justified extending the parole period beyond the standard proportion, with parole to include conditions requiring supervision of the offender's psychiatric treatment.

Orders Made

  • The offender was sentenced to 7 years and 6 months imprisonment, commencing 27 May 2001.
  • A non-parole period of 4 years was specified.
  • The earliest eligible release date on parole was set at 26 May 2005.
  • Parole conditions to include supervision of any treatment required for depression or any other psychiatric condition.

Key Takeaways

  • Where an offender's mental illness substantially impairs their capacity to control their conduct, the Supreme Court confirmed that the role of general deterrence in sentencing is correspondingly reduced.
  • A finding of substantial impairment under section 23A of the Crimes Act 1900 does not eliminate consideration of future dangerousness, but that factor will carry limited weight where psychiatric evidence establishes the offender is unlikely to pose ongoing risk with appropriate treatment.
  • Special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 were established where two psychiatrists agreed the offender required ongoing medication and counselling, and where the offender had no prior custodial history, justifying an extended parole period relative to the head sentence.
  • The identified sentencing range for manslaughter by substantial impairment in comparable cases was between approximately five and thirteen years, with placement within that range determined by the individual features of the offending and the offender's background.
  • A 25 percent discount for a guilty plea was applied, reflecting both the utilitarian value of the plea and evidence of genuine contrition, consistent with the principles in R v Thomson & Houlton.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) (special circumstances and non-parole periods)

Cases
- R v Blacklidge (NSWCCA, 12 December 1995, unreported)
- R v Engert (1996) 84 A Crim R 67
- R v Hill (1981) 3 A Crim R 397
- R v Thomson & Houlton [2000] 49 NSWLR 383
- Veen v The Queen (No 1) (1979) 143 CLR 458
- Veen v The Queen (No 2) (1987-88) 164 CLR 465
- R v Wright (1997) 93 A Crim R 48