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Supreme Court 18 November 2016

R v Hart (No 5)

[2016] NSWSC 1612

HomicideDrugsFirearms & weapons
CRIMINAL LAW SENTENCE MANSLAUGHTER GUILTY PLEA SUBSTANTIAL IMPAIRMENT

Citation: R v Hart (No 5) [2016] NSWSC 1612
Court: Supreme Court of NSW
Date: 18 November 2016
Judge: Campbell J

Background

The offender, a man in his twenties from Albury, stood trial for the murder of a close friend in October 2013. He had shot the deceased in the head with a .22 calibre pen gun. The jury acquitted him of murder but returned a guilty verdict on manslaughter. Following the verdict, the matter came before Campbell J for sentencing.

Both men had become deeply involved in the supply and distribution of methamphetamine ("ice") in the Albury area. Their drug trade involvement created financial tensions between them, including disputes over a drug debt arising from a botched batch of ice and an unresolved transaction concerning a Holden utility vehicle. At the time of the shooting, both men also had money tied up in a drug purchase through a Sydney contact who had gone incommunicado.

The offender had seven related offences dealt with at the same time, including possessing unregistered and prohibited firearms, intentionally destroying property by fire (burning the utility after the shooting), breaking and entering, and damaging corrective services property.

  • What facts relevant to the manslaughter could be established for sentencing purposes, given the jury's verdict did not reveal its reasoning?
  • What was the offender's mental state at the time of the offending, including whether a substance-induced psychiatric condition reduced his moral culpability?
  • How should the objective seriousness of the manslaughter be assessed, and what weight should be given to mitigating and aggravating factors?
  • What sentence was appropriate, including the structure of the non-parole period and the accumulation of sentences for the related offences?

Decision

Campbell J found that the offender had, for weeks or months before the shooting, been suffering from a substance-induced mental disorder caused by heavy ice use. Two forensic psychiatrists agreed that his condition was clinically recognised and that it gave rise to significant paranoia and delusional thinking, though they differed on the precise diagnosis. His delusions centred on beliefs that police were surveilling him through cameras, drones, and even midgets in his roof cavity.

The judge accepted on the balance of probabilities that this delusional and paranoid state substantially impaired the offender's capacity to judge his actions or to control himself at the time of the offence, within the meaning of s 23A of the Crimes Act 1900 (NSW). This substantially diminished his moral culpability, even though the offending involved the use of a firearm and was connected to the drug trade.

The judge assessed the objective seriousness of the manslaughter as below the middle of the range of such offences, having regard to the impairment finding. The offender's guilty plea to manslaughter (entered before trial), his drug dependence, and his background were treated as mitigating factors. His ongoing involvement in drug supply, the use of an illegal firearm, and his flight from the scene followed by destruction of evidence were counted against him.

For the related offences, the judge structured fixed-term sentences that were largely served concurrently or absorbed into the pre-sentence custody period, recognising the totality principle and the offender's overall circumstances.

Orders Made

  • Manslaughter (Luke Hargrave): 8 years imprisonment, non-parole period of 5 years and 4 months, commencing 28 February 2014, with eligibility for parole on 27 June 2019; additional term of 2 years and 8 months expiring 27 February 2022.
  • Possessing a prohibited pen gun (sequence 2): Fixed term of 3 months, commencing 28 February 2014, expiring 27 May 2014.
  • Possessing an unauthorised Hammerli self-loading pistol (sequence 3): Fixed term of 3 months, commencing 30 October 2013, expiring 29 January 2014.
  • Possessing an unregistered Winchester repeating rifle (sequence 4): Fixed term of 3 months, commencing 30 October 2013, expiring 29 January 2014.
  • Break and enter a dwelling house committing a serious indictable offence: Fixed term of 1 month, commencing 29 January 2014, expiring 28 February 2014.
  • Intentionally destroying by fire the Holden Utility (sequence 6): Fixed term of 3 months, commencing 27 May 2014, expiring 26 August 2014.
  • Intentionally damaging corrective services property: Conviction recorded; no further penalty (s 10A Crimes (Sentencing Procedure) Act 1999).
  • Possessing an unregistered air rifle (sequence 5): Conviction recorded; no further penalty (s 10A Crimes (Sentencing Procedure) Act 1999).
  • Firearms the subject of sequences 2, 3, 4, and 5 forfeited to the Crown.
  • Total effective sentence: 8 years and 4 months.

Key Takeaways

  • Where a jury returns a verdict of manslaughter without disclosing its reasons, the sentencing judge must independently determine the relevant facts from trial evidence, applying the criminal standard of proof to aggravating matters and the civil standard to mitigating ones.
  • A substance-induced mental disorder caused by methamphetamine use can constitute substantial impairment under s 23A of the Crimes Act 1900 (NSW), capable of reducing an offender's moral culpability for an unlawful killing even where the precise psychiatric diagnosis is disputed between experts.
  • Conflicting expert diagnoses do not necessarily prevent a finding of substantial impairment, provided the experts agree on the existence of a clinically recognised condition and on the functional effects of that condition on the offender.
  • The Supreme Court placed the objective seriousness of the manslaughter below the mid-range, reflecting the impairment finding, despite the involvement of an illegal firearm and a drug-trade context.
  • In accumulating sentences for multiple related offences, the court applied the totality principle to ensure the overall sentence remained proportionate to the offender's total criminality across the manslaughter and the seven ancillary matters.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 23A, 195
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A, 28, 58
- Criminal Procedure Act 1986 (NSW), s 168
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases:
- R v Previtera (1997) 94 A Crim R 76
- Muldrock v The Queen (2011) 244 CLR 120
- R v Henry (1999) 46 NSWLR 346