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Supreme Court 10 April 2015

R v Aller (No 2)

[2015] NSWSC 402

Homicide
CRIMINAL LAW SPECIAL HEARING MANSLAUGHTER SUBSTANTIAL IMPAIRMENT LIMITING TERM.

Citation: R v Aller (No 2) [2015] NSWSC 402
Court: Supreme Court of New South Wales
Date: 10 April 2015
Judge: Hidden J

Background

The accused was charged with the murder of Amy Aiton, who died on 31 July 2012 after being stabbed repeatedly with a kitchen knife following an argument. Because of mental illness, the accused was found unfit to stand trial. The matter proceeded as a special hearing under the Mental Health (Forensic Provisions) Act 1990.

At the special hearing (reported as R v Aller [2015] NSWSC 178), Hidden J found that, on the limited material available, the accused had not committed murder but had committed manslaughter. The partial defence of substantial impairment under s 23A of the Crimes Act 1900 was made out, with the accused's capacity for self-control found to have been substantially impaired by the prodromal presentation of a schizophrenic illness.

The present judgment addressed the sentencing step that follows such a finding: the nomination of a limiting term of imprisonment under s 23(1)(b) of the Mental Health (Forensic Provisions) Act 1990. That term represents the sentencing court's best estimate of the sentence that would have been appropriate had the accused been found guilty of manslaughter at an ordinary criminal trial.

  • What limiting term of imprisonment was appropriate for the manslaughter, having regard to the gravity of the offending, the accused's background, and his mental illness?
  • Whether the partial defence of substantial impairment, already established at the special hearing, should reduce the otherwise applicable sentence.
  • Whether the accused was entitled to a further reduction of the limiting term under s 22A of the Crimes (Sentencing Procedure) Act 1999 for facilitating the administration of justice.
  • Whether the victim impact statements should be taken into account under s 28(4) of the Crimes (Sentencing Procedure) Act 1999.

Decision

Hidden J characterised the manslaughter as falling into the more serious category of that offence. The attack was sustained and ferocious, involving numerous stab wounds, significant force applied to break through bone, and evidence that the deceased had attempted to defend herself. The victim's pre-existing physical vulnerabilities, caused by serious injuries suffered in a 2004 car accident, were also noted, and the accused was aware of those limitations.

The accused's background weighed significantly against him. He had a criminal history involving offences of violence and domestic violence, including a pattern of threatening and harassing behaviour directed at former partners. He had been on bail for assault and related domestic violence offences at the time of the killing. His partial completion of a rehabilitation program was noted, but its weight was limited by his early departure.

Hidden J declined to take the victim impact statements into account in determining the limiting term, concluding that it was not appropriate to exercise the discretion under s 28(4) of the Crimes (Sentencing Procedure) Act 1999 in the circumstances.

On the question of facilitation of justice, Hidden J accepted that the accused had been fit to instruct his solicitor in July 2013, when a letter offering to plead guilty to manslaughter was forwarded to the Director of Public Prosecutions. Combined with the accused's early surrender to police, his admissions, and the focused conduct of the proceedings, the prerequisites of s 22A were satisfied. Hidden J assessed a baseline limiting term of 14 years and applied a 15 per cent reduction, arriving at a rounded limiting term of 11 years and 6 months, to date from 1 August 2012.

Orders Made

  • A limiting term of 11 years and 6 months, commencing 1 August 2012, was nominated.
  • The accused was referred to the Mental Health Review Tribunal under s 24 of the Mental Health (Forensic Provisions) Act 1990.
  • The accused was ordered to be held in custody in an appropriate correctional centre pending further assessment by the Tribunal.

Key Takeaways

  • Under s 23(1)(b) of the Mental Health (Forensic Provisions) Act 1990, a limiting term must reflect the sentencing court's best estimate of the sentence appropriate for the underlying offence at a normal trial, with standard sentencing principles applied, except that no non-parole period can be set.
  • A finding of substantial impairment under s 23A of the Crimes Act 1900 reduces murder to manslaughter, but the resulting offence may still be assessed as falling within the more serious range depending on the nature and circumstances of the attack.
  • Section 22A of the Crimes (Sentencing Procedure) Act 1999 can apply in special hearing proceedings: an offer to plead guilty conveyed while an accused was temporarily fit, combined with early admissions and focused proceedings, may satisfy the statutory prerequisites for a reduction on the basis of facilitation of justice.
  • The sentencing court declined to exercise the s 28(4) discretion to take victim impact statements into account, without elaborating beyond finding the course inappropriate in the circumstances.
  • Fluctuating fitness to stand trial does not automatically preclude reliance on steps taken during periods of fitness as a basis for a sentencing discount, provided those periods of fitness can be established on the evidence.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 19, 23, 24, 28
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22A, 28(4)

Cases:
- R v Aller [2015] NSWSC 178 (the special hearing verdict decision)
- R v Peterson (No 5) [2014] NSWSC 1080 (approach to s 22A in special hearing context)