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6
Court of Criminal Appeal 8 April 2015

R v AB

[2015] NSWCCA 57

Homicide
APPEAL SENTENCING MANSLAUGHTER LIMITING TERM NOMINATED CRIMINAL APPEAL ACT 1912 (NSW), S 5D APPEAL DISMISSED CRIMINAL LAW

Citation: R v AB [2015] NSWCCA 57
Court: Court of Criminal Appeal
Date: 08 April 2015
Judge(s): Simpson J (principal judgment); Price J and McCallum J (agreeing)

Background

The respondent was charged with the murder of his former de facto wife in July 2010. He drove 26 kilometres to confront her at her home, retrieved a rifle from his car, and shot her five times. He immediately called emergency services and admitted to the shooting.

The respondent was found unfit to be tried in December 2012 and became a forensic patient. A special hearing was conducted in October 2013 before Adams J, at which the respondent did not contest the killing but raised defences of provocation and substantial impairment by abnormality of mind. Adams J rejected provocation but upheld the defence under section 23A of the Crimes Act 1900 (NSW), finding the respondent not guilty of murder but guilty of manslaughter.

The respondent had been diagnosed with adjustment disorder with depressed mood, dementia, cerebrovascular disease, and possible Alzheimer's dementia. Adams J nominated a limiting term of 7 years commencing from the date of arrest. The Director of Public Prosecutions appealed, contending the limiting term was manifestly inadequate.

Legal Issues

  • Whether Adams J erred by finding the respondent had expressed remorse and taking that into account as a mitigating factor
  • Whether Adams J erred in finding no real risk of reoffending
  • Whether Adams J failed to have regard to all relevant sentencing purposes under section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), including denunciation
  • Whether Adams J failed to make an adequate assessment of objective gravity
  • Whether the limiting term of 7 years was manifestly inadequate in all the circumstances

Decision

Ground 1: Remorse
The Court of Criminal Appeal found that Adams J had not in fact taken remorse into account as a mitigating factor (at [33]). His Honour's remarks simply acknowledged that the respondent had made some muted expressions of guilt and remorse, falling well short of a finding of remorse for the purposes of section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The ground was based on a misconstruction of what Adams J had said (at [33]).

Ground 2: Risk of reoffending
The court found the assessment that the respondent posed no real risk of further violent conduct was open on the evidence (at [39]). The respondent was almost 69 years old, physically frail, suffering progressive dementia, and had been in custody for four years. Although he may have continued to harbour feelings of resentment, his opportunity to translate those feelings into violent action was, in the court's assessment, "virtually nil" (at [39]).

Ground 3: Sentencing purposes and denunciation
The court acknowledged that on a superficial reading Adams J's remarks appeared to focus only on the absence of any rehabilitative or punitive purpose (at [42]). However, the court noted the established principle that the purpose of nominating a limiting term is not to punish: R v Mailes [2004] NSWCCA 394 (at [42]). The court held that an offender who is unsuitable by reason of mental disability to be a vehicle for general deterrence is equally unsuitable to be the subject of denunciation, because both considerations are affected by the same diminished moral culpability (at [45]). Closer analysis of Adams J's reasons showed the harm to the victim, her daughter, and the community had not been entirely overlooked (at [45]).

Ground 4: Objective gravity
The court accepted that the killing was objectively serious, not impulsive, and had been at least contemplated if not planned for some time (at [47]). However, the Director had not demonstrated that any failure to make an explicit quantitative finding of objective gravity affected the determination of the limiting term (at [50]). The ground was therefore rejected (at [51]).

Ground 5: Manifest inadequacy
To succeed, the Director was required to establish that the limiting term was unreasonable or plainly unjust (at [52]). Having regard to the respondent's mental state and deteriorating condition, the court was not prepared to reach that conclusion. The circumstances bore a marked similarity to a comparable case in which a sentence of approximately 4 years and 10 months had been imposed (at [52]).

Orders Made

  • Crown appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the purpose of nominating a limiting term for a forensic patient found guilty at a special hearing is not to punish: the court applied R v Mailes [2004] NSWCCA 394 to hold that punitive sentencing purposes carry reduced weight in this context (at [42]).
  • An offender whose mental disability renders them an unsuitable vehicle for general deterrence is equally unsuitable to be the subject of denunciation, because diminished moral culpability arising from impaired mental capacity affects both considerations equally (at [45]).
  • To succeed in a Crown appeal against a limiting term under section 5D of the Criminal Appeal Act 1912 (NSW), the Director must establish that the term was manifestly inadequate, meaning it falls below the range of sentences that could justly be imposed consistently with sentencing standards (at [27]).
  • No error is established merely by identifying that a sentencing judge did not make an express quantitative finding on objective gravity: the Director must go further and show the omission actually affected the outcome (at [50]).
  • Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not require a ritualistic recitation and express discarding of each sentencing purpose; it is sufficient that the court's reasons, read as a whole, demonstrate awareness of the applicable purposes (at [43]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, s 21A(3)
- Crimes Act 1900 (NSW), s 23, s 23A
- Criminal Appeal Act 1912 (NSW), s 5D
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 3, s 14, s 22(1), s 23, s 42

Cases
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Everett v The Queen [1994] HCA 49; 181 CLR 295
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Griffiths v The Queen [1977] HCA 44; 137 CLR 293
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Mailes [2004] NSWCCA 394; 62 NSWLR 181
- R v Zeilaa [2009] NSWSC 532