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Supreme Court 16 April 2015

R v Brenda Haines

[2015] NSWSC 390

Homicide
CRIMINAL LAW SENTENCING MURDER VICTIM IMPACT STATEMENT

Citation: R v Brenda Haines [2015] NSWSC 390
Court: Supreme Court of New South Wales
Date: 16 April 2015
Judge(s): R S Hulme AJ

Background

The prisoner pleaded guilty to the murder of Haibo Wang, committed on 3 March 2001 at a shop in the vicinity of the Somerset Hotel. A witness observed the prisoner moving toward the deceased with a knife during an argument; the deceased called for help and died shortly after from a stab wound to the chest. The prisoner left the scene carrying the deceased's wallet and watch.

The prisoner's path to formal sentencing was protracted. In February 2003, a jury found her unfit to be tried. After a special hearing in 2004, a second jury found on the limited evidence available that she had committed murder. Acting Justice Miles then nominated a limiting term of 17 years commencing 3 March 2001, as required under the Mental Health (Forensic Provisions) Act 1990 (NSW). The prisoner remained under Mental Health Review Tribunal supervision for over a decade, spending time at a women's correctional centre and later at a forensic hospital before moving to a less restrictive psychiatric unit. She was found fit to plead in April 2013 and subsequently entered her guilty plea.

The formal sentencing in April 2015 required the Supreme Court to impose a sentence consistent with, and no greater than, the limiting term already set by Miles AJ, while applying ordinary sentencing principles afresh.

  • Whether the sentence to be formally imposed could exceed the 17-year limiting term nominated by Miles AJ under the Mental Health (Forensic Provisions) Act 1990 (NSW)
  • How to approach the sentencing exercise where a limiting term had already been determined: de novo or deferentially
  • Whether time spent in a mental health facility while on bail should be counted as time in custody
  • What weight to give to the prisoner's Aboriginal background and deprived upbringing, including intergenerational disadvantage
  • Whether drug-induced psychosis at the time of the offence reduced the prisoner's moral culpability
  • Whether special circumstances existed to justify departing from the standard non-parole period ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • The appropriate discount for the guilty plea

Decision

The limiting term as a ceiling. Hulme AJ confirmed that the sentence could not exceed the 17-year limiting term nominated by Miles AJ. However, following R v Wilson [2005] NSWCCA 112, his Honour approached the sentencing exercise de novo, applying ordinary sentencing principles without being bound by Miles AJ's particular reasoning.

Objective seriousness and moral culpability. The court found no evidence of an intention to kill, but accepted that the prisoner intended at minimum to inflict grievous bodily harm, as required by her plea. The attack was characterised as somewhat sustained, occurring despite the deceased calling for help and raising his arms in resistance. There was no evidence the prisoner faced any physical threat from the deceased. The court accepted, based on psychiatric evidence, that the prisoner was suffering a drug-induced psychosis at the time, which reduced her moral culpability to some degree, but found the overall offending remained serious.

Subjective circumstances. The court gave weight to the prisoner's profound childhood deprivation, including neglect, exposure to family violence, parental alcohol abuse, and the instability typical of many Aboriginal Australians affected by intergenerational disadvantage, applying the principles in Bugmy v The Queen [2013] HCA 37. Her long history of drug dependence and mental illness was also treated as relevant mitigation, though not as a complete answer to the gravity of the offence.

No special circumstances. The court declined to find special circumstances that would justify reducing the non-parole period below the ratio in s 44(2). Hulme AJ noted the prevalence and seriousness of knife attacks on shopkeepers, the prisoner's failure to comply with conditions while at the Bunya Unit, and the significant time already elapsed since arrest. A plea discount was applied. The court also recommended that relevant disability and community support agencies prepare appropriate resources for the prisoner's eventual release without delay.

Orders Made

  • Sentenced to imprisonment with a non-parole period of 12 years and 9 months from 3 March 2001, together with a further term of 4 years and 3 months
  • Parole eligibility date recorded as 3 December 2013
  • Recommendation made to the Ageing, Disability and Home Care sub-section of the Department of Family and Community Services, and other appropriate agencies, to progress preparation of support resources for the prisoner without delay

Key Takeaways

  • Under the Mental Health (Forensic Provisions) Act 1990 (NSW), a sentence formally imposed following a finding of fitness to plead cannot exceed the limiting term previously nominated at a special hearing, as confirmed in R v Mitchell [1999] NSWCCA 120 and R v Mailes [2004] NSWCCA 394.
  • A sentencing court conducting the formal sentencing exercise after a limiting term has been set approaches the task de novo, rather than simply adopting the earlier judge's reasoning, consistent with R v Wilson [2005] NSWCCA 112.
  • Drug-induced psychosis can reduce an offender's moral culpability for murder, but the extent of that reduction depends on findings the court can make to the requisite standard of proof; bare or inconsistent accounts from the offender may not suffice to establish the degree of impairment claimed.
  • The principles in Bugmy v The Queen (2013) 249 CLR 571 require courts to give genuine weight to an Aboriginal offender's background of childhood deprivation, family violence, and intergenerational disadvantage when assessing subjective circumstances in sentencing.
  • Failure to comply with the conditions of a less restrictive custodial placement is a relevant consideration in assessing whether special circumstances warrant adjusting the non-parole period ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Mental Health (Forensic Provisions) Act 1990 (NSW)
- Crimes Act 1900 (NSW), s 19A (murder, maximum life imprisonment)

Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- R v Mailes [2004] NSWCCA 394
- R v Mitchell [1999] NSWCCA 120
- R v MJR (2002) 54 NSWLR 368
- R v Wilson [2005] NSWCCA 112; 153 A Crim R 257