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Supreme Court 4 August 2016

R v Settree (No 2)

[2016] NSWSC 1079

HomicideFirearms & weapons
CRIMINAL LAW OFFENCES AGAINST THE PERSON MURDER TRIAL BY JUDGE ALONE DEFENCE OF MENTAL ILLNESS

Citation: R v Settree (No 2) [2016] NSWSC 1079
Court: Supreme Court of New South Wales
Date: 4 August 2016
Judge: Campbell J

Background

The accused was charged with two counts of murder following the shooting deaths of both his parents at their home in Cobar on the evening of 3 December 2014. He shot his mother once in the neck and his father twice, in the chest and head, using a 12-gauge pump-action shotgun he retrieved from his bedroom cupboard. The immediate trigger was a domestic dispute over a bottle of wine, though the accused was suffering from a severe and longstanding mental illness at the time.

The accused elected to be tried by judge alone, with the Crown's consent. He entered not guilty pleas to both murder charges, reflecting an intention to rely on the defence of mental illness. The accused also faced a separate charge of possessing a prohibited firearm without a licence, to which he had pleaded guilty in the Local Court at the first available opportunity.

Both the Crown and defence accepted that the mental illness defence was available. The sole issue for determination at trial was therefore whether that defence had been established on the balance of probabilities.

  • Whether the accused had established the defence of mental illness under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), specifically whether his paranoid schizophrenia meant he was unable to determine that his actions were wrong at the time of the killings.
  • What orders should follow a special verdict of not guilty by reason of mental illness under s 39 of that Act.
  • Whether a guilty plea to the firearms charge could stand alongside special verdicts of not guilty by reason of mental illness on the murder charges, and how the accused should be sentenced for the firearms offence.

Decision

Campbell J found that the accused had established the defence of mental illness on the balance of probabilities. Both expert psychiatrists, Dr Samuels and Dr Nielssen, gave evidence that the accused was suffering from a severe case of paranoid schizophrenia at the time of the killings. Their joint opinion was that his disease of the mind meant he could not think rationally about his conduct and, critically, could not determine that what he was doing was wrong. That opinion, accepted by the Court, satisfied the legal test derived from R v McNaughton (1843) and confirmed in The King v Porter (1933).

The formal admissions made by the accused under s 184 of the Evidence Act 1995 (NSW) were sufficient, absent the mental illness defence, to establish the elements of murder: he admitted to shooting both parents deliberately and with intent to kill. The Crown accepted the defence was available, and Campbell J returned special verdicts of not guilty by reason of mental illness on both counts.

On the firearms charge, Campbell J acknowledged some concern about the apparent incongruity between a not guilty mental illness verdict on the murders and a guilty plea to possessing the same weapon at the same time. However, the judge accepted that the accused was fit to plead, understood the ramifications of his plea, and had maintained it consistently. The Court accepted the guilty plea and proceeded to sentence.

For the firearms offence, Campbell J took into account the accused's early guilty plea (discounting the sentence by 25%), his mental illness (reducing his suitability as a vehicle for general and specific deterrence), and his prior criminal history, noting that past offending from 1999 onwards may have been related to his untreated illness. A fixed term of 18 months' imprisonment was imposed, backdated to the date of the offence.

Orders Made

  • Special verdict of not guilty of the murder of Margaret Settree by reason of mental illness (s 38, Mental Health (Forensic Provisions) Act 1990).
  • Special verdict of not guilty of the murder of Donald Ian Settree by reason of mental illness (s 38, Mental Health (Forensic Provisions) Act 1990).
  • The accused to be detained in a correctional facility or such other place as determined by the Mental Health Review Tribunal until released by due process of law (s 39 of the Act).
  • The Registrar directed to notify the Minister for Health and the Mental Health Review Tribunal of the special verdicts and orders, and to provide the Tribunal with copies of the reasons, orders, transcript, and psychiatric reports.
  • On the firearms charge: convicted on the guilty plea; sentenced to a fixed term of 18 months' fulltime imprisonment commencing 3 December 2014 and expiring 2 June 2016.

Key Takeaways

  • The defence of mental illness under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) requires the accused to establish, on the balance of probabilities, that a disease of the mind meant they could not determine that their actions were wrong at the time of the offence.
  • Unanimous expert psychiatric opinion that an accused could not reason about right and wrong due to severe paranoid schizophrenia was sufficient to satisfy that defence, even where the accused had admitted to acting deliberately and with intent to kill.
  • A special verdict of not guilty by reason of mental illness does not automatically preclude a concurrent guilty plea and conviction on a related charge, provided the accused is fit to plead and maintains the plea with understanding of its consequences.
  • Under s 39 of the Mental Health (Forensic Provisions) Act 1990, a special verdict of not guilty by reason of mental illness results in detention until released by due process of law, rather than an ordinary custodial sentence.
  • When sentencing for the firearms offence, mental illness operated to reduce the weight given to general and specific deterrence, though it did not remove those considerations entirely, particularly given community concerns about firearms offences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18
- Criminal Procedure Act 1986 (NSW), ss 104, 105, 107, 132, 133
- Evidence Act 1995 (NSW), ss 60, 184
- Firearms Act 1996 (NSW), ss 4, 7
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 38, 39, 43(a)

Cases:
- Alford v Magee (1952) 85 CLR 437
- Hawkins v The Queen [1994] HCA 28; 179 CLR 500
- The King v Porter [1933] HCA 1; 55 CLR 182
- R v Jenkins (1963) 64 SR (NSW) 20
- R v McNaughton (1843) 8 ER 718
- R v Minani [2005] NSWCCA 226; 63 NSWLR 490