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Supreme Court 19 August 2016

R v Tarrant

[2016] NSWSC 1155

HomicideDomestic & family violence
CRIMINAL LAW SENTENCE MANSLAUGHTER MINIMAL DEGREE OF IMPAIRMENT PLANNED USE OF INTOXICATING SUBSTANCE

Citation: R v Tarrant [2016] NSWSC 1155
Court: Supreme Court of New South Wales
Date: 19 August 2016
Judge(s): Fagan J

Background

The offender, a woman in her mid-twenties, was charged with the murder of her de facto husband at Dubbo in July 2013. She had been in a relationship with the deceased since she was approximately 15 years old, a relationship the court found involved a sustained pattern of physical and verbal abuse over roughly nine years. The offender had four children with the deceased.

The circumstances of the death were planned. The offender agreed with a co-offender, Raymond Roff, to administer crushed sleeping tablets in a meal prepared for the deceased. Roff then entered the home, killed the deceased as he slept, and removed the body. Roff was separately convicted of murder and sentenced to a non-parole period of 24 years.

The offender pleaded not guilty to murder but guilty to manslaughter at arraignment. The Crown did not accept that plea and proceeded to trial. The jury acquitted her of murder and convicted her of manslaughter on the basis of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 (NSW).

  • What sentence was appropriate for manslaughter by substantial impairment in circumstances involving premeditation, the use of an intoxicating substance, and an offence committed in company?
  • To what degree did the offender's psychiatric condition, as caused or contributed to by the history of domestic abuse, reduce her moral culpability?
  • How did mitigating factors, including an early plea of guilty, assistance to authorities, remorse, and good rehabilitation prospects, affect the sentence?
  • What comparable cases were relevant to achieving sentencing consistency?

Decision

Fagan J undertook a careful assessment of the history of violence in the relationship. The court found that the deceased's physical conduct, while clearly constituting criminal assaults, was not prolonged or severe in the context of the overall relationship, and did not cause substantial physical injury. The court accepted that the offender was exposed to frequent verbal abuse and the deceased's fits of temper, and treated the history of domestic abuse as relevant to the psychiatric diagnoses underpinning the jury's substantial impairment finding.

The court characterised the degree of impairment as minimal rather than significant. The premeditated nature of the offending, including the planning of the death, the administration of a drugging agent, and the involvement of a co-offender, was identified as seriously aggravating. These features distinguished the offender's case from the large class of cases involving spontaneous killings in response to immediate provocation or attack, which the court found insufficiently comparable for consistency purposes.

The court identified and weighed the mitigating factors: the offender's early plea of guilty, assistance provided to authorities, demonstrated remorse, and assessed good prospects of rehabilitation. The sentence was also affected by the offender's troubled background, including the early onset of her relationship with the deceased when she was 15, her social isolation, and her psychiatric history. The court acknowledged the principle, drawn from Bugmy v The Queen, that the effects of social deprivation on moral culpability do not diminish with the passage of time.

Fagan J considered several comparable cases involving low-order mental impairment combined with premeditation, including R v Troja, R v Cooper, R v Hevesi-Nagi, and R v Chen. Taking all matters into account, the court imposed a total sentence of 10 years and 8 months, comprising a non-parole period of 8 years and a balance of term of 2 years and 8 months, backdated to account for time already served in custody.

Orders Made

  • The offender was sentenced to imprisonment for a non-parole period of 8 years, commencing 5 November 2015 and expiring 4 November 2023.
  • A balance of term of 2 years and 8 months was imposed, commencing 5 November 2023 and expiring 4 July 2026.
  • The offender was notified, pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), that the provisions of that Act apply to her and to the offending the subject of the proceedings.

Key Takeaways

  • A manslaughter verdict based on substantial impairment by abnormality of mind does not automatically produce a lenient sentence; where the degree of impairment is minimal and the offending is planned, the sentencing court will treat premeditation as a significant aggravating feature.
  • The Supreme Court drew a clear distinction between spontaneous killings in response to provocation or immediate violence and calculated, pre-arranged homicides, treating the two categories as insufficiently comparable for consistency purposes even where both result in manslaughter convictions.
  • A history of domestic abuse, accepted as contributing to a psychiatric diagnosis, remains relevant to the assessment of moral culpability, even where the abuse is found not to have been severe or extreme in its physical character.
  • Under the principle confirmed in Bugmy v The Queen, the mitigating significance of social deprivation and background disadvantage does not diminish over time, and the sentencing court applied that principle to the offender's circumstances.
  • Where a co-offender has been convicted of murder and sentenced to a substantially longer term, the sentencing court will calibrate the manslaughter sentence to reflect the materially different level of culpability established by the respective verdicts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Catley v R [2014] NSWCCA 249
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- R v Anatky [2007] NSWSC 1047
- R v Blacklidge (NSW Court of Criminal Appeal, 12 December 1995, unreported)
- R v Chen [2012] NSWSC 1000
- R v Cooper (NSW Supreme Court, 16 May 1997, unreported; on appeal, NSW Court of Criminal Appeal, 24 February 1998, unreported)
- R v Hevesi-Nagi [2009] NSWSC 755; [2009] NSWSC 956
- R v Low (1991) 57 A Crim R 8
- Regina v Oinonen [1999] NSWCCA 310
- R v Troja (NSW Court of Criminal Appeal, 16 July 1991, unreported)
- Villalon v R [2015] NSWCCA 229
- Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584