Citation: McLaren v Regina [2012] NSWCCA 284
Court: NSW Court of Criminal Appeal
Date: 19 December 2012
Judge(s): McClellan CJ at CL, McCallum J, Bellew J
Background
The applicant, a man in his mid-fifties with a long history of psychiatric illness including bipolar disorder and schizophrenia, had been working as a live-in carer for a man with advanced motor neurone disease. After months of sleep deprivation, increasing stress, and without the knowledge of those around him, ceasing to take his prescribed psychiatric medication, the applicant deliberately lowered the flat of his patient's bed one night, knowing the horizontal position could be fatal due to the patient's respiratory condition. He then left the house and, on returning, closed doors and turned on the television to avoid hearing the victim's cries for help.
The victim survived but spent many hours in distress and fear before being discovered the following morning. He died not long after, though not as a result of the applicant's conduct. The applicant pleaded guilty to attempted murder in the District Court and was sentenced to a total term of eight years imprisonment, with a non-parole period of five years.
On appeal to the Court of Criminal Appeal, the applicant raised two grounds: first, that the sentencing judge had erred in the approach to the standard non-parole period following the High Court's decision in Muldrock v R; and second, that fresh psychiatric evidence warranted a lesser sentence.
Legal Issues
- Whether the sentencing judge erred by applying the standard non-parole period framework in a manner inconsistent with the High Court's ruling in Muldrock v R, which had overturned the earlier approach taken in R v Way
- Whether new psychiatric evidence, not before the sentencing judge, should be admitted on appeal and, if so, whether it warranted a reduction in sentence
- Whether the sentencing judge's finding that the applicant "well knew that what he was doing was seriously wrong" could be reconciled with the fuller psychiatric picture now available
Decision
Ground 1: The Muldrock error
The sentencing judge had sentenced the applicant under the approach established in R v Way, which treated the standard non-parole period as a "legislative guideline" requiring explicit reasons to depart from. The High Court in Muldrock subsequently rejected that approach, holding instead that the standard non-parole period is one of two principal matters to be weighed in sentencing, not a mandatory starting point. Although this meant the sentencing judge had applied a now-discredited framework, the Court found that on the evidence before the sentencing judge, no lesser sentence was warranted. This ground alone did not result in a reduction.
Ground 2: Fresh psychiatric evidence
The applicant sought to introduce a further opinion from psychiatrist Dr Nielssen, which had not been available at sentencing. The Court admitted this evidence to avoid a potential miscarriage of justice, even though it did not meet the strict requirements of "fresh evidence" in the conventional sense. Dr Nielssen's further opinion indicated that the applicant's mental state at the time of the offence was severely impaired, and that his judgment and sense of reason were acutely affected by a deteriorating psychiatric condition linked to his non-compliance with medication.
The Court found that this new evidence could not be reconciled with the sentencing judge's finding that the applicant "well knew that what he was doing was seriously wrong" and had acted from selfish motives. While the Court acknowledged the objective seriousness of the offence, including the victim's extreme vulnerability, the prolonged nature of his suffering, and the serious breach of trust involved, it concluded that the applicant's moral culpability was significantly lower than the sentencing judge had determined. A lesser sentence was warranted, and the original sentence was quashed.
Orders Made
- The sentence imposed at first instance was quashed.
- In lieu thereof, the applicant was sentenced to a term of imprisonment with a non-parole period of 3 years, commencing 17 April 2011 and expiring 16 April 2014, and a balance of term of 2 years expiring 16 April 2016.
- The first eligible date for parole was 16 April 2014.
Key Takeaways
- The Court of Criminal Appeal confirmed that, following Muldrock v R, the standard non-parole period framework from R v Way no longer applies; the standard non-parole period is a relevant consideration to be weighed, not a mandatory reference point from which explicit departure must be justified.
- A Muldrock error in the sentencing approach does not automatically result in resentencing; the Court must still be satisfied that, on all the evidence before the sentencing judge, a lesser sentence was warranted before it will intervene.
- Additional psychiatric evidence can be admitted on a sentence appeal even where it does not qualify as "fresh evidence" in the strict legal sense, provided admission is necessary to avoid a miscarriage of justice.
- Severely impaired mental state at the time of offending, attributable to a long-standing psychiatric condition and non-compliance with medication, can significantly reduce an offender's assessed moral culpability, even where the objective features of the offending remain serious.
- Findings about an offender's state of mind made at sentencing may be undermined on appeal where fuller expert evidence paints a materially different picture of the offender's psychiatric condition at the time of the offence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 30 (attempted murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A(2), 54B(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- R v Johnson [2005] NSWCCA 186
- Stumbles v R [2006] NSWCCA 418