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Supreme Court 20 June 2008

R v Soon

[2008] NSWSC 622

Homicide
CRIMINAL LAW AND PROCEDURE MANSLAUGHTER PARTICULAR FACTS AND CIRCUMSTANCES SENTENCE IMPOSED

Citation: R v Soon [2008] NSWSC 622
Court: Supreme Court of New South Wales
Date: 20 June 2008
Judge(s): Michael Grove J

Background

The offender, a 71-year-old woman, was convicted of the manslaughter of her estranged husband following her guilty plea to that charge. The Crown accepted the plea in discharge of a murder indictment on the basis that the offender's relevant mental capacities were substantially impaired by an abnormality of mind at the time of the killing, reducing what would otherwise have been murder to manslaughter.

The deceased was a quadriplegic man who lived alone and depended entirely on carers for daily activities, including transferring himself from bed. On 4 September 2006, the offender attended his home at approximately 6 am carrying two cans of petrol, poured petrol on the front fence, threw a second can through his bedroom window, and set the premises alight. The deceased was found in his bed by firefighters who had to force entry; the cause of death was burns.

The court found the offender's motive was to prevent the deceased from pursuing a property settlement claim against her in divorce proceedings. The killing was premeditated: she had surveilled the deceased's home over the preceding month, monitored the carers' schedules to identify a window of absence, purchased petrol cans herself, and wrote a reminder note to "buy petrol."

  • Whether the offender's plea of guilty to manslaughter on the basis of substantial impairment of mind was properly accepted in discharge of the murder indictment
  • The appropriate head sentence for manslaughter, taking into account the objective gravity of the offence, the impairment of the offender's judgment, and other subjective factors including the early guilty plea
  • Whether special circumstances existed to justify departing from the standard non-parole period, having regard to the offender's age of 71

Decision

Michael Grove J accepted the psychiatric evidence that the offender's judgment was substantially impaired by an abnormality of mind at the time of the killing, which placed her culpability in the category of manslaughter by reason of that impairment. However, his Honour emphasised that the offender nonetheless acted with clear intent to kill a person she knew could not save himself, and that the killing was "extremely evil" when viewed objectively.

On the question of sentence, his Honour assessed a head sentence of 12 years imprisonment as appropriate before any discount, having regard to all circumstances other than the guilty plea. The early guilty plea attracted a full 25 percent discount, reducing the sentence to 9 years imprisonment.

His Honour found special circumstances warranting a departure from the standard non-parole period, identifying that imprisonment would be more onerous for a person of the offender's age than for a younger person. The non-parole period was accordingly set at 5 years 6 months rather than the standard proportion of the overall term.

The court also noted the victim impact statement from the deceased's mother and acknowledged her ongoing grief, while observing that victim impact does not operate to increase a penalty beyond what is otherwise appropriate given the offence, its circumstances, and the offender's personal circumstances.

Orders Made

  • The offender was sentenced to imprisonment with a non-parole period of 5 years 6 months, commencing 5 September 2006 and expiring 4 March 2012
  • The balance of term was set at 3 years 6 months, commencing 5 March 2012
  • The earliest date of eligibility for parole was specified as 4 March 2012

Key Takeaways

  • A finding of substantial impairment of mind can reduce a charge of murder to manslaughter, but does not eliminate criminal responsibility; the sentencing court will still assess the objective gravity of the killing and the level of residual culpability.
  • Premeditation and deliberate exploitation of the victim's physical vulnerability are significant aggravating factors in a manslaughter sentence, even where mental impairment is accepted.
  • A full 25 percent discount for an early guilty plea was applied, reducing the head sentence from 12 years to 9 years imprisonment.
  • Advanced age can constitute a special circumstance justifying a reduction in the non-parole period, on the basis that custody is inherently more onerous for elderly offenders.
  • Victim impact statements are relevant and acknowledged in sentencing, but the Supreme Court confirmed they do not operate to increase a penalty beyond what the objective and subjective circumstances of the offence otherwise warrant.

Legislation and Cases Referenced

Legislation:
- The judgment references legislation providing that substantial impairment of mind may reduce murder to manslaughter (the relevant provision is not named in the text but corresponds to s 23A of the Crimes Act 1900 (NSW))
- Legislation prescribing a maximum penalty of 25 years imprisonment for manslaughter
- Legislative provisions governing the setting of non-parole periods and the finding of special circumstances

Cases:
- No cases are cited by name in the provided text.