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Court of Criminal Appeal 3 October 2014

Da-Pra v R; R v Da-Pra

[2014] NSWCCA 211

Assault & violenceHomicide
CRIMINAL LAW APPEAL AGAINST CONVICTION MENTAL ILLNESS MURDER MANSLAUGHTER PRA

Citation: Da-Pra v R; R v Da-Pra [2014] NSWCCA 211
Court: NSW Court of Criminal Appeal
Date: 3 October 2014
Judge(s): Emmett JA; R A Hulme J; Bellew J

Background

The appellant was convicted after a jury trial of three offences arising from events on 18 December 2009: the manslaughter of his father (as an alternative to murder, on the basis of substantial impairment), the murder of a 12-year-old girl (EW), and causing grievous bodily harm with intent to murder a 77-year-old woman (VW). The central question at trial was whether the defence of mental illness or, alternatively, the partial defence of substantial impairment applied to any of the three offences. It was not disputed that the appellant suffered from schizophrenia or that he knew the physical nature of his acts.

The appellant had held delusional beliefs for some time that he and his family were being pursued by members of a motorcycle club. These delusions formed the backdrop to the offences. The key question was whether his mental illness left him unable to know, in the legal sense, that what he was doing was wrong.

Two separate appeals came before the Court of Criminal Appeal: the appellant's appeal against conviction on the basis that the mental illness defence should have succeeded, and the Crown's appeal against sentences it argued were manifestly inadequate for the murder of EW and the attempted murder of VW.

  • Whether the trial judge erred by failing to direct the jury that it must not reject unanimous psychiatric evidence in the absence of other evidence casting doubt on it, in relation to the count involving the appellant's father.
  • Whether the three verdicts were unreasonable or could not be supported having regard to the evidence.
  • Whether the Court of Criminal Appeal should exercise its power under s 7(4) of the Criminal Appeal Act 1912 (NSW) to quash a conviction and order detention where it appears the appellant was mentally ill so as not to be legally responsible at the time of the act.
  • Whether the sentences imposed for the murder of EW and the attempted murder of VW were manifestly inadequate.

Decision

Conviction appeal: the count involving the appellant's father

The Court accepted that the psychiatric evidence concerning the appellant's father was unanimous in supporting the mental illness defence for that offence, and that this evidence was not adequately displaced by other trial evidence. Although the trial judge had provided a clear direction about the psychiatric evidence, the jury did not completely reject that unanimous evidence. The Court exercised the power under s 7(4) of the Criminal Appeal Act 1912 and quashed the manslaughter conviction, substituting a verdict of not guilty on the grounds of mental illness. The Court noted it was not necessary to separately determine whether the verdict was unreasonable once s 7(4) was engaged.

Conviction appeal: the counts involving EW and VW

The Court found that the jury was entitled to reject the mental illness defence in respect of the murder of EW and the wounding of VW. The factual bases for the psychiatric opinions in relation to those two counts were more contestable, and there was sufficient evidence to support the jury's conclusions. Those convictions were upheld.

Crown sentence appeal

The Court found that the original sentences for the murder of EW and the attempted murder of VW were demonstrably inadequate. The sentencing judge had given insufficient weight to specific deterrence and attributed too little weight to the appellant's assistance to authorities. While the Court recognised the appellant's significantly reduced moral culpability due to his mental illness, it held that the sentences for those two counts required intervention. The Court restructured the sentences, imposing a total effective term of 25 years with a non-parole period of 18 years across both counts, accumulated to reflect the overall criminality of the offending.

Orders Made

  • Leave to appeal against conviction granted; appeal allowed in part.
  • Conviction for the manslaughter of the appellant's father quashed; verdict of not guilty on the grounds of mental illness entered in lieu; appellant ordered to be detained in strict custody until released by due process of law.
  • Crown appeal against sentence allowed; sentences for the murder of EW and the infliction of grievous bodily harm with intent to murder VW quashed and replaced as follows:
  • Count 3 (grievous bodily harm with intent to murder VW): non-parole period of 7 years 6 months, balance of term 2 years 6 months, commencing 20 December 2009.
  • Count 2 (murder of EW): non-parole period of 13 years, balance of term 7 years, commencing 20 December 2014.
  • The appellant to become eligible for parole on 19 December 2027.

Key Takeaways

  • The Court of Criminal Appeal confirmed that s 7(4) of the Criminal Appeal Act 1912 confers a distinct power to quash a conviction and order detention where the appellate court itself concludes the appellant was legally mentally ill at the time of the offence, making it unnecessary in such cases to separately resolve whether the jury's verdict was unreasonable.

  • Where unanimous psychiatric evidence supports a mental illness defence and no other evidence adequately displaces it, a trial judge is required to direct the jury that it must not simply reject that evidence; failure to give such a direction may ground a successful appeal.

  • A jury remains entitled to reject a mental illness defence, even where expert evidence supports it, when the factual foundations of the expert opinions are incomplete, contested in cross-examination, or otherwise open to doubt on the evidence as a whole.

  • Specific deterrence is not automatically a minor consideration in cases involving an offender with mental illness; the sentencing court's attribution of very little weight to specific deterrence was identified as an error contributing to sentences that were demonstrably inadequate.

  • In restructuring sentences following a successful Crown appeal, the Court of Criminal Appeal accumulated the terms to reflect the totality of criminality involved in a child murder and a serious attempted murder, while acknowledging the significant mitigating effect of the appellant's mental illness on moral culpability.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 45(1)
- Criminal Appeal Act 1912 (NSW), ss 5D, 7(4)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 39(1)

Cases
- R v Porter [1933] HCA 1; 55 CLR 182
- M v The Queen [1994] HCA 63; 181 CLR 487
- Everett v The Queen [1994] HCA 49; 181 CLR 295
- Jones v The Queen [1997] HCA 12; 191 CLR 439
- Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- R v MAK and MSK [2006] NSWCCA 381; 167 A Crim R 159
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Cvetkovic v R [2013] NSWCCA 66
- Mencarious v R [2014] NSWCCA 104
- Peiris v R [2014] NSWCCA 58
- R v Da-Pra [2012] NSWSC 607