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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: NSW Court of Criminal Appeal
Date: 8 April 2015
Judge(s): Simpson J (principal judgment, at [1]); Price J (agreeing, at [54]); McCallum J (agreeing, at [55])

Background

The respondent was arrested in July 2010 and charged with the murder of his former de facto partner. In December 2012, the court found him unfit to stand trial, making him a "forensic patient" under the Mental Health (Forensic Provisions) Act 1990 (NSW). He was referred to the Mental Health Tribunal and eventually subjected to a special hearing before Adams J in October 2013.

At the special hearing, the respondent did not contest that he had killed the victim. He raised defences of provocation and substantial impairment by abnormality of mind under the Crimes Act 1900 (NSW). Adams J rejected provocation but accepted the substantial impairment defence, finding that the respondent's capacity to understand events, judge right from wrong, and control himself was substantially impaired by an abnormality of mind arising from an underlying condition. Accordingly, the respondent was found not guilty of murder but guilty of manslaughter.

Following the special hearing, Adams J was required under the Forensic Provisions Act to nominate a "limiting term," representing the best estimate of the sentence that would have been appropriate had the respondent been fit to stand trial. Adams J nominated a limiting term of seven years, commencing 10 July 2010. The Director of Public Prosecutions appealed that term as inadequate under s 5D of the Criminal Appeal Act 1912 (NSW).

  • Whether the limiting term of seven years was manifestly inadequate for manslaughter in the circumstances of the offence.
  • Whether Adams J erred by failing to make an explicit quantitative finding as to the objective gravity of the offence.
  • Whether Adams J erred by finding that the respondent had expressed remorse, given the content of his recorded statements.
  • Whether Adams J erred by finding there was no risk of recidivism.

Decision

On remorse: The Court of Criminal Appeal found that Adams J had not, in fact, made any finding that the respondent had expressed remorse. The Director's ground of appeal on this point therefore had no factual foundation, and was rejected.

On risk of recidivism: The Court found that the finding of low recidivism risk was open on the evidence before Adams J. The respondent's mental state and the circumstances of the offence supported that conclusion. No error was established.

On objective gravity: The Director argued that Adams J failed to make an explicit quantitative finding about the seriousness of the offence. The Court of Criminal Appeal acknowledged that no such explicit finding appeared in the formal reasons, but noted that Adams J had clearly recognised the offence's gravity during sentencing submissions. Critically, the Director had not demonstrated that the absence of a formal finding on objective gravity actually affected the nominated limiting term. The ground was therefore rejected.

On manifest inadequacy: The Court of Criminal Appeal held that the Director had not established that the seven-year limiting term was unreasonable or plainly unjust, applying the test from Markarian v The Queen. Simpson J noted a marked similarity to R v Zeilaa [2009] NSWSC 532, where the sentencing judge had imposed a sentence of four years and ten months with a non-parole period of two years and six months for manslaughter in comparable circumstances. The appeal was dismissed.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the purpose of a limiting term under the Mental Health (Forensic Provisions) Act 1990 (NSW) is not to punish, following R v Mailes [2004] NSWCCA 394. This distinction shapes how limiting terms are assessed on appeal.
  • A Crown appeal against a limiting term on the ground of manifest inadequacy requires the Director to demonstrate that the term was unreasonable or plainly unjust in all the circumstances, consistent with the standard in Markarian v The Queen.
  • Where a Crown appeal asserts that a sentencing judge failed to make a particular finding, it is not enough to show the finding is absent from the reasons. The Director must also demonstrate that the omission materially affected the outcome.
  • No error was established in Adams J's assessment of remorse or recidivism risk, as the former finding was not actually made and the latter was open on the facts.
  • In dismissing the appeal, the Court of Criminal Appeal treated the respondent's significant mental impairment as a weighty factor capable of sustaining a limiting term that might otherwise appear modest for a killing of this nature.

Legislation and Cases Referenced

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

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