Citation: [2002] NSWSC 544
Court: Supreme Court of New South Wales
Date: 20 June 2002
Judge(s): Ireland AJ
Background
The offender was charged with the murder of a service station console operator in the early hours of 21 February 1999. The killing was captured on seven video cameras and was not factually disputed. The offender had attended the station with a companion to purchase food, and following a brief verbal exchange between the companion and the victim, the offender produced a firearm, shot the victim in the chest, recovered his food item, and left the scene.
The offender pleaded not guilty to murder but guilty to manslaughter. The Crown declined to accept the manslaughter plea, and the matter proceeded to jury trial. After two days of deliberation, the jury returned a verdict of guilty of murder.
At trial, the offender raised the partial defence of substantial impairment under s 23A of the Crimes Act 1900, relying on evidence of Tourette's Syndrome, Obsessive Compulsive Disorder, and a psychotic disorder. Three of the four expert witnesses supported a finding of substantial impairment, though the jury rejected the defence (or at least its second limb). The sentencing hearing followed conviction.
Legal Issues
- Whether a sentencing court could find that the offender's capacity to control himself was substantially impaired by an abnormality of mind under s 23A(1)(a) of the Crimes Act 1900, even though the jury's verdict of murder meant the impairment was not found to meet the second limb of the defence under s 23A(1)(b).
- Whether such a finding on sentence was inconsistent with the jury's verdict of murder.
- Whether the apparent absence of motive was relevant to sentence as a manifestation of the offender's mental abnormality.
- Whether the offender's non-resident status, and the likelihood of deportation upon release to parole, should operate to deny him the benefit of a variation to the statutory non-parole ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.
Decision
Ireland AJ accepted that a sentencing court can find, consistently with a jury verdict of murder, that an offender suffered a substantial impairment by abnormality of mind under s 23A(1)(a), provided that finding falls short of concluding the impairment was so substantial as to reduce liability to manslaughter under s 23A(1)(b). The two findings occupy different points on the same spectrum and do not contradict one another. The video footage of the shooting confirmed there was ample basis for the jury to conclude the second limb was not established.
The court accepted that the apparent absence of motive for the shooting was consistent with the offender's psychiatric condition, and treated this as an ameliorating factor on sentence. Ireland AJ also accepted that the offender's undiagnosed mental disability at the time of the offence, combined with his present insight into his condition and commitment to ongoing treatment, moderated the weight given to personal deterrence.
The court identified special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, warranting a variation of the statutory non-parole ratio to increase the period of parole. The factors relied upon were the offender's youth, his psychiatric disability, his rehabilitation prospects and progress, and his family support. Ireland AJ expressly set aside the fact that the offender, as a non-resident, would be returned to Hong Kong upon release. His Honour held that the benefits ordinarily flowing from the parole system should not be withheld on the basis of non-resident status.
The court also noted the delay between arrest in April 1999 and the eventual conviction in April 2002, including three prior hearing dates and one trial that ended in a hung jury. While no party was blamed for those delays, the period of uncertainty was treated as an ameliorating factor in sentencing.
Orders Made
- The offender was sentenced to 14 years imprisonment, commencing 19 April 1999 and expiring 18 April 2013.
- A non-parole period of 9 years was set, commencing 19 April 1999 and expiring 18 April 2008.
- The offender was eligible for parole from 18 April 2008.
Key Takeaways
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A sentencing court's finding that an offender suffered substantial impairment of self-control under s 23A(1)(a) of the Crimes Act 1900 is not inconsistent with a jury verdict of murder, provided the court stops short of finding the impairment was so substantial as to warrant the reduction of liability to manslaughter under s 23A(1)(b). The two findings address different degrees of the same condition.
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The apparent absence of motive for a killing can constitute an ameliorating factor on sentence where it is consistent with an offender's psychiatric abnormality of mind.
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Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, an offender's non-resident status and the consequent likelihood of deportation upon release do not deprive that offender of the benefit of a variation to the statutory non-parole ratio. The Supreme Court held that the ordinary benefits of the parole regime should not be withheld on grounds of immigration status.
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Prolonged pre-sentence uncertainty, arising from repeated trial dates and a hung jury, can be treated as an ameliorating factor in sentencing even where no party bears direct blame for the delays.
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Special circumstances justifying a longer parole period may be established by reference to a combination of factors, including youth, psychiatric disability, rehabilitation progress, and family support.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 23A (partial defence of substantial impairment by abnormality of mind)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) (special circumstances and variation of statutory non-parole ratio)
- Sentencing Act 1989 (NSW)
Cases:
- Veen v The Queen (No 2) (1987-1988) 164 CLR 456
- Ninus Scognamiglio (1991) 56 A Crim R 81
- Smith (1985) 75 WN (NSW) 198
- Kocan (1966) 2 NSWR 565
- Anderson (1981) VR 155; (1980) 2 A Crim R 379