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Supreme Court 2 September 2005

REGINA v MASSEI

[2005] NSWSC 1030

Homicide
SENTENCE MANSLAUGHTER MENTAL ILLNESS SIGNIFICANCE

Citation: Regina v Massei [2005] NSWSC 1030
Court: Supreme Court of New South Wales (Common Law Division)
Date: 2 September 2005
Judge(s): Adams J

Background

The offender killed his wife in the early hours of 30 September 2002 at their Rockdale unit. He struck her with a heavy ornamental glass apple, applied force to her throat, and set fire to the premises. He then inflicted serious wounds to his own forearms in an apparent suicide attempt and was found unconscious at the scene when firefighters arrived.

The offender was charged with murder but pleaded not guilty to that charge and guilty to manslaughter on the grounds of substantial impairment under s 23A of the Crimes Act 1900. The Crown accepted this plea on the basis that, while the offender intended to kill his wife, his capacity to control himself and to judge right from wrong was so substantially impaired by an abnormality of mind that his liability was appropriately reduced from murder to manslaughter.

The Crown later applied to withdraw its acceptance of the plea and seek a special verdict of not guilty on grounds of mental illness under s 38 of the Mental Health (Criminal Procedure) Act 1990. Adams J refused that application in a separate judgment of 13 July 2005, and the matter proceeded to sentencing on the manslaughter conviction.

  • Whether the court should defer sentencing under s 11 of the Crimes (Sentencing Procedure) Act 1999 to allow further assessment of the offender's rehabilitation and mental health in the community.
  • When, for the purposes of the twelve-month maximum adjournment period in s 11(2), the "finding of guilt" occurs in proceedings where the conviction followed a plea of guilty.

Decision

Adams J found that the central remaining question at sentencing was the degree of confidence that could be placed in the offender's continued mental health and rehabilitation. The offender had already served a significant period of imprisonment, and the evidence before the court indicated continuing remission of the mental illness that had contributed to the offence. The offender was engaged in regular employment, participating in social activities, exercising, and obtaining medication through his general practitioner, with psychiatric support available if needed.

In those circumstances, Adams J concluded that this was an appropriate case to exercise the power under s 11 to defer sentencing. The purpose was to allow further assessment of the offender's capacity and prospects for rehabilitation in the community, and to enable him to demonstrate that his progress would continue.

On the question of when the twelve-month period in s 11(2) begins where the conviction arose from a plea, Adams J expressed uncertainty about the precise point at which a "finding of guilt" occurs in sentencing proceedings. Drawing on Maxwell v The Queen (1995-1996) 184 CLR 501, his Honour concluded that, for the purposes of s 11, the relevant date is the date on which sentence is or would have been passed, not the date of the original plea.

Orders Made

  • Proceedings adjourned for twelve months.
  • Bail to continue.
  • Liberty to the parties to apply to vary bail conditions.

Key Takeaways

  • Section 11 of the Crimes (Sentencing Procedure) Act 1999 permits a court to defer sentencing for up to twelve months to assess an offender's rehabilitation, and Adams J held it applicable in a manslaughter case involving significant mental illness where the offender had demonstrated genuine rehabilitation.
  • The twelve-month maximum adjournment period under s 11(2) runs from the "finding of guilt," and Adams J held that where the conviction arises from a plea, the relevant date is the date on which sentence is or would have been passed, not the date of the plea itself.
  • A Crown application to withdraw acceptance of a plea of guilty to manslaughter and proceed instead to a mental illness special verdict was refused in earlier proceedings, illustrating the limits on the Crown's ability to resile from an accepted plea.
  • Evidence of continued employment, social engagement, regular exercise, and effective medication management can constitute positive indicators of sustained remission relevant to the sentencing exercise in cases involving mental illness.
  • Under s 23A of the Crimes Act 1900, a finding that an offender's capacity to control conduct and judge right from wrong was substantially impaired by an abnormality of mind provides a proper basis for reducing liability from murder to manslaughter.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11 (adjournment for rehabilitation assessment)
- Mental Health (Criminal Procedure) Act 1990 (NSW), s 38 (special verdict of not guilty on grounds of mental illness)

Cases:
- Maxwell v The Queen (1995-1996) 184 CLR 501