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District Court 10 December 2015

Regina v Djuro Ukropina

[2015] NSWDC 306

Homicide
CRIME MURDER MANSLAUGHTER PLEA OF GUILTY LESSER CHARGE ABNORMALITY OF MIND

Citation: Regina v Djuro Ukropina [2015] NSWDC 306
Court: District Court of New South Wales
Date: 10 December 2015
Judge: Judge AC Scotting

Background

The offender, a Serbian-born man in his late fifties, had been living with his adult daughter (the deceased) at a unit in Kingsford, Sydney, from approximately 2003. His wife worked as a veterinarian in New Zealand and visited Australia periodically. In the weeks leading up to November 2013, the offender's mental health deteriorated significantly: he was diagnosed with major depression with features of melancholia, was losing weight rapidly, suffering anxiety attacks, and had expressed suicidal ideation.

In the early hours of 14 November 2013, the offender had a severe anxiety episode. His daughter stayed up with him and contacted the Acute Care Team. Later that morning, between approximately 8am and 8.10am, the deceased was found slumped against a wall outside the unit with stab wounds. She died from her injuries. The offender was standing over her.

The offender was originally charged with murder under section 18 of the Crimes Act 1900 (NSW). He pleaded guilty to the lesser charge of manslaughter on the basis of substantial impairment by abnormality of mind under section 23A of the same Act, and the Crown accepted that plea.

  • Whether the offender's mental condition at the time of the offence constituted substantial impairment of mind sufficient to reduce murder to manslaughter under section 23A of the Crimes Act 1900 (NSW)
  • How the offender's mental condition should affect the weight given to the sentencing purposes of general deterrence, retribution, and denunciation
  • What discount should be applied for the offender's early plea of guilty
  • Whether special circumstances existed justifying a variation to the standard non-parole period ratio
  • What the appropriate head sentence and non-parole period should be, having regard to all mitigating and aggravating factors

Decision

The court accepted the agreed factual basis and psychiatric evidence supporting the plea of manslaughter on grounds of substantial impairment. Psychiatric evidence from Dr Furst and Dr Nielssen, which was not in dispute, established that the offender was suffering from a severe underlying mental condition at the time of the offence. This impairment substantially reduced his moral culpability for the killing.

Because the offender's mental condition diminished his moral culpability, Judge Scotting found that general deterrence, retribution, and denunciation carried less weight in the sentencing exercise, consistent with the approach in DPP (Cth) v De La Rosa at [177]. The court also acknowledged the objective seriousness of the offence: a father had stabbed and killed his daughter in the family home.

The court determined the appropriate head sentence before discount to be nine years' imprisonment. A 25% discount was applied for the early guilty plea, in accordance with R v Thomson & Houlton and R v Borkowski. The court found special circumstances existed by reference to the offender's age, his psychiatric treatment needs, the fact that this was his first time in custody, and that his mental condition would make incarceration more difficult. These special circumstances justified a greater proportion of the sentence being served on parole, producing a non-parole period shorter than the statutory default ratio.

The court directed that the psychiatric reports of Dr Furst and Dr Nielssen, including the treatment plan set out in Dr Furst's second report, be forwarded to the Department of Corrective Services for inclusion in the offender's medical records.

Orders Made

  • The offender was convicted of manslaughter.
  • Sentenced to imprisonment for 6 years and 9 months.
  • Non-parole period of 4 years and 9 months, commencing 14 November 2013.
  • Eligible for release on parole on 13 August 2018.
  • Psychiatric reports of Dr Furst and Dr Nielssen to be provided to the Department of Corrective Services for inclusion in the offender's medical records.

Key Takeaways

  • Under section 23A of the Crimes Act 1900 (NSW), a substantial impairment of mind arising from an abnormality of mind can reduce a charge of murder to manslaughter, with the result that the offender's moral culpability is treated as meaningfully diminished for sentencing purposes.
  • Where diminished moral culpability is established through psychiatric evidence, the sentencing purposes of general deterrence, retribution, and denunciation receive reduced weight, as confirmed by the approach in De La Rosa.
  • A 25% discount for an early guilty plea was applied consistently with the principles in Thomson & Houlton and Borkowski, which govern the quantification of plea discounts in New South Wales.
  • Special circumstances justifying a lower non-parole period ratio can arise from a combination of factors including the offender's age, first time in custody, need for ongoing psychiatric treatment, and the particular difficulty that a mental condition creates for custodial experience.
  • The District Court directed that psychiatric treatment plan material be transmitted to corrective services authorities, reflecting the court's role in facilitating appropriate post-sentence management of an offender with significant mental health needs.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 23A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 22

Cases
- Veen v R (No 2) (1988) 164 CLR 465
- R v McNaughton (2006) 66 NSWLR 566
- Baumer v R (1988) 166 CLR 51
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No 5) [2009] NSWSC 432
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- Barbaro v The Queen (2014) 253 CLR 58
- Hili v The Queen (2010) 242 CLR 520
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Palijan v R [2010] NSWCCA 142
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Wright (1997) 93 A Crim R 48
- R v Lawrence [2005] NSWCCA 91
- Muldrock v R (2011) 244 CLR 120
- R v Keceski (unreported, 10 August 1993, NSWCCA)
- R v Low (1991) 57 A Crim R 8
- R v Dawes [2004] NSWCCA 363
- Taber v R (2007) 170 A Crim R 427
- R v MD (2005) 156 A Crim R 372