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Court of Criminal Appeal 20 December 2013

Vulovic v R

[2013] NSWCCA 340

Homicide
APPEAL CRIMINAL LAW SENTENCE APPEAL

Citation: Vulovic v R [2013] NSWCCA 340
Court: Court of Criminal Appeal, New South Wales
Date: 20 December 2013
Judges: Simpson J; RA Hulme J; Barr AJ

Background

The appellant was a 53-year-old man who, in November 2009, stabbed a younger and larger acquaintance five times at a shared house in Canley Heights, causing his death. A jury acquitted the appellant of murder but convicted him of manslaughter, a verdict that necessarily reflected a finding of provocation. The sentencing judge, Johnson J, imposed nine years imprisonment with a non-parole period of six years.

The appellant sought leave to appeal against that sentence on three grounds. He argued that the sentencing judge made findings inconsistent with the jury's provocation verdict, that the judge failed to find a sufficient causal link between his mental illness and the offence, and that the judge should have found his custodial sentence would be more onerous because of that mental illness.

The Court of Criminal Appeal granted leave to appeal but ultimately dismissed all three grounds.

  • Whether the sentencing judge erred by finding that the provocative conduct did not constitute a high degree of provocation, in a manner inconsistent with the jury's verdict
  • Whether the sentencing judge erred by failing to find a causal connection between the appellant's mental illness (an anxiety disorder) and the commission of the offence
  • Whether the sentencing judge erred by failing to find that a custodial sentence would be more onerous for the appellant because of that mental illness

Decision

Provocation findings: The Court held that the sentencing judge's findings on provocation were not inconsistent with the jury's verdict. The jury's verdict required only that provocation was established, not that it was of a high degree. The judge was entitled to make his own assessment of the weight and nature of the provocation for sentencing purposes, and finding that the provocation was not at the higher end of the scale was an open and permissible conclusion on the evidence. No error was established on this ground.

Causal nexus with mental illness: The appellant's diagnosed anxiety disorder, for which he was receiving treatment, was said to have contributed to the offending. The Court accepted that the sentencing judge did not expressly address this causal link. However, the Court found that even if the judge had turned his mind to it, the evidence did not establish the required connection. In particular, the anxiety disorder had been successfully treated with medication, and the more significant contributors to the offence were the appellant's consumption of alcohol and the provocation he had experienced. The failure to make this finding explicitly was not a material error.

Onerousness of custody: The Court similarly rejected the third ground. The evidence indicated the appellant had responded well to treatment in custody, had benefited from a stress management course, and was being appropriately monitored and supported. The sentencing judge was not required to assume that suitable care and intervention would be unavailable during his sentence. The judge did take the appellant's mental condition into account in assessing rehabilitation prospects and in finding special circumstances warranting an extended parole period.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A jury's manslaughter verdict based on provocation does not require the sentencing court to treat the provocation as high in degree. The sentencing judge retains an independent function to assess the nature and weight of provocation as a mitigating factor on sentence.
  • Where a mental illness or disorder is successfully managed by medication at the time of sentencing, a sentencing court is not obliged to find either a causal nexus between that condition and the offence or that custody will be materially more onerous as a result.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge may implicitly consider a mental health condition even without addressing it in a dedicated passage of reasons, provided the condition's overall significance is reflected in the sentencing exercise.
  • The presence of alcohol consumption and provocation as concurrent contributing factors can dilute the weight attributable to a mental disorder in the causation analysis, reducing its mitigating force.
  • Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 were found on account of the appellant's age, the fact this was his first custodial sentence, and the benefits of an extended period of parole supervision.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
- R v Isaacs (1997) 41 NSWLR 374
- R v Hemsley [2004] NSWSC 228