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Supreme Court 16 September 2016

R v Jenbare

[2016] NSWSC 1317

Homicide
CRIME SENTENCING UNDERLYING CONDITION OF SEVERE, POST

Citation: R v Jenbare [2016] NSWSC 1317
Court: Supreme Court of New South Wales
Date: 16 September 2016
Judge: McCallum J

Background

The offender, an Ethiopian refugee who arrived in Australia in 1999, was charged with the murder of his wife. He pleaded not guilty to murder but guilty to manslaughter at the earliest opportunity. The Crown did not accept that plea and proceeded to trial on the murder charge.

The central issue at trial was whether the offender's psychiatric condition at the time of the killing established the partial defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 (NSW). The offender suffered from severe, chronic post-traumatic stress disorder, depression, and cognitive impairment arising from torture he endured as a political prisoner in Ethiopia and subsequent trauma in refugee camps in Kenya and Somalia.

The jury returned a verdict of not guilty of murder but guilty of manslaughter. McCallum J proceeded to sentence the offender, accepting that the verdict reflected the jury's acceptance of the substantial impairment defence.

  • What sentence was appropriate for manslaughter on the basis of substantial impairment, having regard to the objective seriousness of the offence (multiple stab wounds) and the offender's significant psychiatric history?
  • What discount applied to reflect the offender's guilty plea to manslaughter, offered at the earliest opportunity?
  • Whether the statutory non-parole period ratio should be adjusted, and if so, by how much, in light of the offender's mental health needs upon release?

Decision

McCallum J was satisfied, on the facts, that the offence was unpremeditated and arose from a sudden, unexpected loss of control. An argument following the deceased's disclosure of a plan to arrange a fraudulent marriage likely triggered a fear of abandonment to which the offender was particularly vulnerable given his psychiatric conditions. The court accepted that the offender reacted emotionally, impulsively, and aggressively, though it rejected his denial of any intent to wound given the nature and number of the injuries inflicted.

All four psychiatrists who gave evidence agreed that the offender's capacity to control himself was substantially impaired at the time. The court gave significant weight to this unanimous psychiatric evidence and to the offender's traumatic personal history, while acknowledging the objective seriousness of an offence involving eight stab wounds.

The court determined that, absent the guilty plea discount, a sentence of twelve years' imprisonment would have been appropriate. Because the offender had indicated his plea of guilty to manslaughter at the earliest opportunity, a 25 per cent discount applied, reducing the total term to nine years.

McCallum J then considered the appropriate non-parole period. The court found powerful reasons to depart from the standard statutory ratio, given that the offender's largely untreated mental condition had contributed significantly to the offence and that he would require intensive treatment, guidance, and supervision upon release. A non-parole period of five years was fixed, with a balance of term of four years.

Orders Made

  • The offender was sentenced to a total term of nine years' imprisonment.
  • Non-parole period of five years, commencing 9 April 2014 and concluding 8 April 2019.
  • Balance of term of four years, concluding 8 April 2023.
  • First eligible parole date: 8 April 2019.

Key Takeaways

  • The Supreme Court confirmed that an offender who offers a plea of guilty to manslaughter at the earliest opportunity is entitled to a 25 per cent sentence discount, even where the Crown declines that plea and proceeds to trial on a murder charge, and the jury ultimately returns a manslaughter verdict.
  • Unanimous psychiatric evidence of substantial impairment, combined with an offender's severe and documented trauma history, can carry significant weight in mitigation at sentencing, even where the objective seriousness of the offence is considerable.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the court may depart from the standard non-parole period ratio where the offender's mental health condition contributed to the offence and intensive post-release treatment and supervision are required.
  • A finding that the offence was unpremeditated and arose from sudden loss of control does not preclude the court from also finding that the offender intended to wound the deceased; those conclusions can coexist on the evidence.
  • Where psychiatric evidence indicates that an offender may have no genuine recollection of the critical events, answers given to police that prove to be wrong may not be treated as deliberate dishonesty warranting additional adverse weight in sentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 44(2)

Cases
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Catley v R [2014] NSWCCA 249
- R v Tarrant [2016] NSWSC 1155
- R v Halloun [2014] NSWSC 1705
- Sumpton v R [2016] NSWCCA 162