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Supreme Court 3 August 2016

R v May (No 2)

[2016] NSWSC 1070

HomicideDrugs
CRIMINAL LAW SENTENCE MURDER TRIAL BY JUDGE ALONE SELF INDUCED INTOXICATION

Citation: R v May (No 2) [2016] NSWSC 1070
Court: Supreme Court of New South Wales
Date: 3 August 2016
Judge: Wilson J

Background

The offender was convicted of the murder of his aunt following a judge-alone trial (R v May [2016] NSWSC 820). On the evening of 11 April 2014, in Redfern, he attacked the deceased in the street, striking her repeatedly in the head with a half brick. The assault was witnessed by several bystanders and continued even after onlookers attempted to intervene. The deceased sustained catastrophic head injuries and was declared dead on arrival at St Vincent's Hospital.

The offender had been released from prison the previous day and spent the evening of the offence consuming cannabis and methylamphetamine. Wilson J found that the crime would not have been committed but for the offender's state of extreme drug-induced intoxication. There was no prior grievance or objective cause for the attack on a relative with whom the offender had an otherwise close relationship.

The sentencing proceedings addressed the appropriate penalty, taking into account the severity of the offence, the offender's personal circumstances, his mental health and addiction history, and the utilitarian benefit flowing from the manner in which the trial was conducted.

  • What is the objective gravity of the offence, and where does it sit within the range for murder?
  • What weight should be given to the offender's self-induced intoxication in assessing moral culpability?
  • How should the offender's mental health difficulties, drug addiction, and personal history be taken into account?
  • Whether a discount should be applied for the utilitarian benefit of the judge-alone trial?
  • 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)?
  • Whether a life sentence under s 61 of the Crimes (Sentencing Procedure) Act was warranted?

Decision

Wilson J declined to impose a life sentence. The Crown did not submit that the level of culpability was so extreme as to warrant that outcome, and her Honour accepted that assessment. The standard non-parole period of 20 years was treated as a guidepost, consistent with the High Court's approach in Muldrock v The Queen.

The offence was characterised as one of extreme violence. The repeated, sustained blows to an elderly woman's head in a public street, the continuation of the attack even after bystanders intervened, and the catastrophic nature of the injuries all pointed to very high objective seriousness. However, her Honour found that self-induced intoxication, while not mitigating the offence, was central to understanding how a man with an otherwise close relationship to the deceased came to form the intention to kill her. The offender's illusory grievance, born of amphetamine psychosis, was identified as the only explicable cause.

In assessing moral culpability, the Court drew on principles from Bugmy v R and Munda v Western Australia, acknowledging the offender's deprived background and significant mental health issues, including anxiety and panic disorder, without treating those matters as substantially reducing his culpability for this offence. The offender's psychological difficulties were found to make custody harsher and more onerous than it would otherwise be, and that factor was taken into account as a moderating influence on the penalty.

A discount was applied for the utilitarian benefit of the judge-alone trial, which Wilson J described as having been conducted in a manner that saved considerable court resources. No special circumstances were found. Although the offender's drug addiction and psychological difficulties were noted, her Honour was satisfied the ordinary statutory parole ratio would produce a sufficient period of post-release supervision.

Orders Made

  • The offender was sentenced to imprisonment for 19 years and 10 months, commencing 11 April 2014.
  • Non-parole period: 14 years and 10 months, commencing 11 April 2014 and expiring 10 February 2029.
  • Balance of term: 5 years, expiring 10 February 2034.
  • Earliest eligible parole date: 10 February 2029.
  • The offender was advised of the Crimes (High Risk Offenders) Act 2006 (NSW) and its potential application pursuant to s 25C(1) of that Act.

Key Takeaways

  • Self-induced intoxication does not mitigate the seriousness of a murder, but a sentencing court may find it relevant to understanding how an offender came to form the intention to kill, particularly where no objective grievance or prior animosity existed.
  • A discount for the utilitarian benefit of a judge-alone trial is available where the manner in which the trial was conducted resulted in a meaningful saving of court resources, even in the absence of a plea of guilty.
  • Bugmy v R and Munda v Western Australia confirm that a deprived background and poor mental health history are relevant to the assessment of moral culpability, but the weight given to those matters must be calibrated against the gravity and circumstances of the specific offence.
  • Where anxiety and panic disorder will make the offender's experience of custody materially harsher and more onerous, that is a legitimate factor capable of moderating the sentence imposed.
  • Under s 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a life sentence requires the court to be satisfied that the level of culpability is so extreme that community interests in retribution, punishment, protection, and deterrence can only be met by that outcome; the threshold was not met on the facts of this case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(a), 19A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 61 and the Table to Division 1A of Part 4
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)

Cases
- R v May [2016] NSWSC 820 (conviction judgment)
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Bugmy v R [2013] HCA 37; (2013) 249 CLR 571
- Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
- R v Dodd (1991) 57 A Crim R 349
- R v Hillsley [2006] NSWCCA 312; (2006) 164 A Crim R 252