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Court of Criminal Appeal 7 May 2014

Pitt v R

[2014] NSWCCA 70

Homicide
CRIMINAL LAW APPEAL SENTENCE MANSLAUGHTER PLEA OF GUILTY S 23A CRIMES ACT 1900

Citation: Pitt v R [2014] NSWCCA 70
Court: NSW Court of Criminal Appeal
Date: 7 May 2014
Judge(s): Simpson J (with Hall J and Harrison J agreeing)

Background

The applicant had been living in a Department of Housing unit in Granville with two other men, including the deceased. On 16 to 17 January 2011, a prolonged and violent confrontation unfolded over many hours, during which the applicant called emergency services at least ten times, was taken to hospital by ambulance, and repeatedly sought police assistance to remove the deceased from his home. After returning from hospital and again attending a police station without result, the applicant returned to his unit and stabbed the deceased once in the chest, killing him.

The applicant was originally charged with murder. He later pleaded guilty to manslaughter on the basis that he suffered a substantial impairment of his mental capacity at the time of the offence, by reason of an abnormality of mind arising from an underlying condition, as provided under s 23A of the Crimes Act 1900 (NSW). The Crown accepted that plea in full satisfaction of the indictment.

The sentencing judge, Latham J, imposed a total term of 8 years' imprisonment with a non-parole period of 6 years. The applicant appealed to the Court of Criminal Appeal, contending the sentence was manifestly excessive and that the sentencing judge erred by failing to find special circumstances justifying a variation of the standard statutory ratio between the non-parole period and the head sentence.

  • Whether the sentence of 8 years with a 6-year non-parole period was manifestly excessive in light of the applicant's severe mental illness and the circumstances of the offending.
  • Whether the sentencing judge erred in failing to find special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which would have permitted a reduction in the statutory ratio between the non-parole period and the head sentence.

Decision

Simpson J, with the other judges in agreement, found error on both grounds. The head sentence of 8 years was held to be manifestly excessive given the applicant's severe mental illness and the significant degree of provocation by the deceased and his brother over the course of the night. The applicant's mental condition was relevant both to the nature and extent of his culpability and to his prospects of rehabilitation, factors that pointed toward a substantially shorter sentence.

The Court also found error in the failure to identify special circumstances warranting a departure from the standard ratio under s 44(2). The applicant's severe mental illness was regarded as a compelling basis for finding special circumstances, and the non-parole period ought to have been proportionally reduced relative to the head sentence to allow for adequate supervision and support on release.

In resentencing, Simpson J took into account the applicant's mental illness, the provocation involved in the conduct of the Collins brothers (as a mitigating circumstance under s 21A(3)(c) of the Sentencing Procedure Act), and the need for a meaningful period of supervised release. The revised sentence of 5 years, with a non-parole period of 3 years, reflected those matters. Because the appeal was filed some 10 months after the sentence was imposed, and more than 3 years had elapsed since the offence, the applicant became immediately eligible for parole consideration upon the new orders taking effect.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed; original sentence quashed.
  • Applicant resentenced to 5 years' imprisonment, comprising a non-parole period of 3 years commencing 17 January 2011 and expiring 16 January 2014, with a balance of term of 2 years expiring 16 January 2016.

Key Takeaways

  • A finding of substantial impairment under s 23A of the Crimes Act 1900 is directly relevant to sentence, bearing on both the degree of moral culpability and the need for an extended period of post-release supervision.
  • Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 can be established by reference to a serious mental illness, and where they are found, the non-parole period should be reduced relative to the head sentence to facilitate supervised reintegration.
  • In dismissing the original sentencing outcome and resentencing the applicant, the Court of Criminal Appeal treated provocation by the victim as a mitigating factor under s 21A(3)(c), even in the context of a manslaughter conviction based on substantial impairment.
  • A manifestly excessive sentence can be established where the sentencing court has failed to give adequate weight to psychiatric conditions that significantly diminish moral culpability.
  • Delays in filing a notice of appeal can have material consequences: because the appeal was lodged 10 months after sentence, the resentencing on appeal meant the applicant's non-parole period had already expired, making him immediately eligible for parole consideration.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(c) (mitigating factors), s 44(2) (special circumstances and statutory ratio)
- Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases:
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- R v Chen [2012] NSWSC 1000
- R v Engert (1995) 84 A Crim R 67
- R v Hollaway [2013] NSWSC 218
- R v Terrence David Kain [2013] NSWSC 638
- Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465