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Supreme Court 2 February 2006

R v RG

[2006] NSWSC 21

Homicide
SENTENCE MANSLAUGHTER SUBSTANTIAL IMPAIRMENT

Citation: R v RG [2006] NSWSC 21
Court: Supreme Court of New South Wales
Date: 2 February 2006
Judge(s): Buddin J

Background

The offender, referred to as RG, was originally charged with the murder of her seven-month-old daughter, RM, on 31 October 2004 at Wingham. The infant's body was discovered floating face down in the Manning River by fishermen that morning. RG was found naked and distressed in the river shortly afterward, and made statements to police acknowledging she had drowned her baby.

RG had been in continuous custody since the date of the offence. Before the jury was empanelled, the court ruled against an evidentiary objection raised on her behalf. RG then pleaded guilty to manslaughter, a plea accepted by the Crown in full satisfaction of the indictment.

The plea was accepted on the basis that RG was, at the relevant time, suffering from a "substantial impairment" under section 23A of the Crimes Act 1900. A complete defence of mental illness had been available to RG but was not relied upon. The sentencing proceedings turned on the appropriate penalty given the intersection of that psychotic disorder, her personal circumstances, and the gravity of the offence.

  • What sentence was appropriate for manslaughter where the offender's responsibility was diminished by substantial impairment arising from a psychotic disorder?
  • What weight should be given to mental illness as a mitigating factor, balanced against the gravity of killing a defenceless infant?
  • Whether a finding of "special circumstances" under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 was justified, permitting a longer than usual parole period.
  • Whether the sentence should be structured to allow for immediate release on parole.

Decision

Buddin J accepted that RG was suffering from a serious psychotic disorder at the time of the offence, and that this substantially impaired her capacity to understand or to control her actions. The court recognised that mental illness of this kind both reduces moral culpability and diminishes the weight ordinarily given to general deterrence in sentencing.

At the same time, the court emphasised that the substantial impairment finding does not extinguish responsibility. The plea of guilty to manslaughter carried with it an acknowledgment that a human life was taken by a deliberate and voluntary act, committed with the requisite intent or recklessness. Given the death of a wholly defenceless infant at the hands of her mother, Buddin J held that nothing less than a full-time custodial sentence was appropriate.

The court made a finding of special circumstances, accepting that a longer parole period was warranted given the need for ongoing psychiatric treatment and the support required for RG's reintegration into the community. This was her first period of custody. The Crown properly conceded that the sentence should be structured to allow immediate release on parole, and the court accepted that concession.

Orders Made

  • RG sentenced to a non-parole period commencing 31 October 2004 and expiring 2 February 2006.
  • Total sentence commencing 31 October 2004 and expiring 30 October 2007.
  • Directed for immediate release on parole upon the following conditions:
  • Attend Dr Richardson's office at Manning Health Service at 3 pm on 3 February 2006.
  • Undertake any treatment directed by Dr Richardson and attend all appointments specified.
  • Abide by any conditions set by Dr Richardson, including taking prescribed medication.
  • Report to the Probation and Parole Service office at Taree within seven days.
  • Accept supervision of that office for the duration of the parole period.

Key Takeaways

  • A plea to manslaughter on the basis of substantial impairment under section 23A of the Crimes Act 1900 acknowledges a deliberate and voluntary act causing death, even where the offender's mental disorder significantly diminished her moral responsibility.
  • Substantial impairment by reason of a psychotic disorder reduces, but does not negate, an offender's culpability, and reduces the weight to be given to general deterrence without displacing the need for a custodial sentence in a case of this gravity.
  • A finding of special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 can be supported where an offender requires sustained psychiatric treatment and supervised reintegration following a first period of custody.
  • Where the mental illness defence was available but not relied upon, sentencing must still grapple carefully with the nature and extent of the disorder and its effect on the offender's conduct at the time.
  • Parole conditions requiring specific psychiatric attendance and compliance with treatment can be imposed to support rehabilitation and manage ongoing risk.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23A (substantial impairment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44(2)

Cases Cited:
- R v Azzopardi [2004] VSC 509
- R v Blacklidge (CCA, 12 December 1995, unreported)
- R v Cameron (2002) 187 CLR 65
- R v Cooper [2001] NSWSC 769
- R v Dawes [2004] NSWCCA 363
- R v Durocher-Yvon (2003) 58 NSWLR 581
- R v Engert (1995) 84 A Crim R 67
- R v Grierson (CCA(NSW), unrep, 28 October 1996)
- R v Hill (1980) 3 A Crim R 397
- R v Hoerler (2004) 147 A Crim R 520
- R v Li [2000] NSWSC 1088
- R v McDonald (CCA, 12 December 1995, unreported)
- R v Morgan (1993) 70 A Crim R 368
- R v Pope [2002] NSWSC 397
- R v Richards [2002] NSWSC 415
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Sette [2000] NSWSC 648
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Troja (CCA, 16 July 1991, unreported)
- R v Wright (1997) 93 A Crim R 48