Citation: R v McKellar (No 5) [2014] NSWSC 453
Court: Supreme Court of New South Wales
Date: 17 April 2014
Judge: Button J
Background
The offender was charged with two serious offences arising from events in the early hours of 21 May 2011 in Bourke, NSW. He broke into the home of an 81-year-old man living alone, armed himself with a knife, golf club and scissors, disguised his appearance, and demanded money. After receiving $50, he told the victim he intended to kill him and stabbed him multiple times in the abdomen. The victim died in hospital two days later.
The offender was found unfit to stand trial due to schizophrenia. Under the Mental Health (Forensic Provisions) Act 1990, a special hearing was conducted before Button J alone, in place of a jury trial. At the conclusion of that hearing, in February 2014, his Honour found on the limited evidence available that the offender had committed both an armed robbery with infliction of really serious physical injury and murder.
This fifth judgment in the series addressed the imposition of limiting terms for each offence, the statutory mechanism that applies in place of ordinary sentencing following a special hearing.
Legal Issues
- Whether, had the special hearing been a normal trial, the court would have imposed a sentence of imprisonment (required before limiting terms can be set).
- What the court's "best estimate" of the appropriate head sentence for each offence would have been, expressed as limiting terms under the Mental Health (Forensic Provisions) Act 1990.
- Whether the offender intended to kill the deceased (as distinct from merely intending to cause really serious physical injury), to be established beyond reasonable doubt.
- How to balance the serious objective features of the offending against significant subjective mitigating factors, including severe mental illness, intellectual impairment, and deprived upbringing.
Decision
Button J confirmed, without hesitation, that imprisonment would unquestionably have been imposed had the special hearing been a normal trial. On the question of intent, his Honour found it unnecessary to determine whether the offender intended to kill, noting the matter was finely balanced. The limiting terms were assessed on the basis that the offender intended, at minimum, to inflict really serious physical injury.
In assessing the objective gravity of the offending, the court identified several seriously aggravating features. The offences were premeditated: the offender had armed himself, disguised himself and taken deliberate steps to avoid leaving forensic evidence. The victim was elderly and vulnerable. The offender was on parole at the time for a prior armed robbery with wounding, and his criminal record included other offences of violence for which he had been imprisoned. The words spoken to the victim immediately before the stabbing reflected a callous disregard for human life.
Against those factors, the court weighed substantial mitigating considerations. The offender suffered from severe schizophrenia, the symptoms of which were present at the time of the offending. He had a deprived upbringing, some degree of intellectual deficiency, and had expressed remorse, with his counsel indicating acceptance of responsibility. Button J noted explicitly that, without this "powerful subjective case," the limiting terms would have been substantially longer.
The court then imposed limiting terms and referred the offender to the Mental Health Review Tribunal. The Tribunal now holds responsibility for reviewing the offender's detention and may order release before expiry of the limiting terms, but only if satisfied that the safety of the offender and the public will not be seriously endangered.
Orders Made
- Limiting term of 9 years imposed for armed robbery with infliction of grievous bodily harm, commencing 22 May 2011 and expiring 21 May 2020.
- Limiting term of 22 years imposed for murder, commencing 22 May 2011 and expiring 21 May 2033.
- Offender referred to the Mental Health Review Tribunal.
Key Takeaways
- A special hearing under the Mental Health (Forensic Provisions) Act 1990 substitutes for a jury trial where an accused is found unfit to stand trial; upon findings that the accused committed the offences, the court must impose limiting terms rather than conventional sentences.
- Limiting terms represent the sentencing court's "best estimate" of the head sentence that would have been appropriate in an ordinary trial ending with guilty verdicts; no non-parole period is set.
- The longest limiting term sets the absolute maximum period of detention as a forensic patient, but the Mental Health Review Tribunal may authorise release earlier, subject to the statutory safety test in s 43 of the Act.
- Severe mental illness is a significant mitigating factor in limiting term proceedings, capable of substantially reducing the term imposed relative to what would otherwise be warranted by the objective gravity of the offending.
- Under the applicable standard of proof, aggravating features must be established beyond reasonable doubt before they can be used against the offender, while mitigating features need only be established on the balance of probabilities.
Legislation and Cases Referenced
Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 23, 24, 42, 43
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54(1)(b)
Cases:
- R v McKellar (No 4) [2014] NSWSC 107 (the reasons for verdict at the conclusion of the special hearing)