Citation: R v DA-PRA [2012] NSWSC 607
Court: Supreme Court of New South Wales
Date: 4 June 2012
Judge(s): RS Hulme J
Background
A jury convicted the prisoner on 21 May 2012 of three offences committed on 18 December 2009. He killed his father (manslaughter), murdered a neighbour's daughter (Emma Wighton), and caused grievous bodily harm to the neighbour (Vivienne Wighton) with intent to murder her.
The physical acts were not in dispute at trial. The central trial issues were whether the defences of mental illness or substantial impairment by abnormality of mind had been established. Those defences were rejected by the jury, but the prisoner's mental state remained highly significant for the purposes of sentencing.
The prisoner had been acting under the belief, driven by schizophrenia, that members of a bikie gang were targeting his family. He killed his father during a confrontation in which he believed his father would not act to protect the family. He then attended a neighbour's home to fabricate an alibi, and attacked the two women there after panicking and believing he was being pursued by those he feared.
Legal Issues
- What sentence was appropriate for each offence, having regard to the prisoner's significant mental illness (schizophrenia) and its role in the offending?
- How should the standard non-parole periods for murder and grievous bodily harm with intent to murder be applied where substantial mental impairment was a major feature, even though that impairment did not reduce the verdicts to lesser offences?
- How should the principle of totality be applied to ensure that the combined sentences were not disproportionately crushing?
- What weight should be given to mitigating factors, including the prisoner's self-inflicted injuries (self-immolation) and his prior lack of awareness of the severity of his mental condition?
Decision
Hulme J accepted that the prisoner's schizophrenia was centrally relevant to the offending. The delusional beliefs that drove each act were products of his mental illness, and there was nothing to suggest the prisoner had ever consciously recognised the severity of his condition or that his drug use was contributing to it before the offences occurred.
The judge applied the standard non-parole period framework under the Crimes (Sentencing Procedure) Act 1999, but found that the prisoner's schizophrenia provided a substantial reason to depart below those benchmarks. The significance of the mental illness, combined with the prisoner's self-immolation after the offences, warranted meaningful reductions from what would otherwise have been much heavier sentences.
His Honour also noted that the severity of imprisonment is not simply proportional to length: a 10-year sentence is more than twice as severe in its impact as a 5-year sentence. The totality principle required the individual sentences to run partly concurrently rather than cumulatively, producing an overall non-parole period of 15 years.
For the murder of Emma Wighton, his Honour imposed a total sentence of 15 years with a 10-year non-parole period. For the grievous bodily harm with intent to murder, a total of 6 years with a 4 year and 6 month non-parole period was imposed. For the manslaughter, a total of 6 years with a 4 year and 6 month non-parole period was imposed.
Orders Made
- Manslaughter of Gervasio Da-Pra: Non-parole period of 4 years and 6 months commencing 20 December 2009, with a balance of term of 1 year and 6 months commencing 20 June 2014.
- Causing grievous bodily harm to Vivienne Wighton with intent to murder: Non-parole period of 4 years and 6 months commencing 20 December 2012, with a balance of term of 1 year and 6 months commencing 20 June 2017.
- Murder of Emma Wighton: Non-parole period of 10 years commencing 20 December 2014, with a balance of term of 5 years commencing 20 December 2024.
- First eligible parole date recorded as 20 December 2024.
Key Takeaways
- Substantial mental impairment by reason of schizophrenia, even where insufficient to reduce a murder verdict at trial, can provide strong grounds to depart below the standard non-parole period at sentencing under the Crimes (Sentencing Procedure) Act 1999.
- Where delusional beliefs caused by mental illness are the direct driver of offending, and the offender had no prior awareness of the severity of their condition, those circumstances carry significant mitigating weight.
- The principle of totality requires courts sentencing for multiple serious offences to construct sentences that run at least partly concurrently, so that the combined effect remains proportionate and not crushing.
- Self-inflicted injuries sustained by an offender after the commission of offences may constitute a mitigating factor to be taken into account under s 21A(1) of the Crimes (Sentencing Procedure) Act 1999.
- Hulme J affirmed that the severity of a custodial sentence is not linearly proportional to its length: the qualitative impact of longer imprisonment increases disproportionately, a principle relevant to the overall sentencing exercise.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 21A and 54A
Cases
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v Daetz and Wilson (2003) 139 A Crim R 398
- R v Previtera (1997) 94 A Crim R 76
- R v Zaro [2007] NSWSC 756
- Veen v The Queen [No 2] (1987-1988) 164 CLR 465