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Supreme Court 2 June 2016

R v Blanks

[2016] NSWSC 707

Homicide
CRIMINAL LAW IMPOSITION OF LIMITING TERM CHRONIC ALCOHOL/DRUG DISORDER REFER TO MENTAL HEALTH REVIEW TRIBUNAL

Citation: R v Blanks [2016] NSWSC 707
Court: Supreme Court of New South Wales
Date: 2 June 2016
Judge: Hall J

Background

The defendant was charged with the murder of a man at Wondabyne, NSW, in January 2012. She was found unfit to stand trial, first by the Supreme Court in May 2015 and then confirmed by the Mental Health Review Tribunal in September 2015. As a result, the matter proceeded under the special hearing procedure in the Mental Health (Forensic Provisions) Act 1990 (MH (FP) Act), conducted without a jury.

Following the special hearing in February 2016, Hall J found the defendant not guilty of murder but guilty of manslaughter on the limited available evidence. The finding was one of involuntary manslaughter by an unlawful and dangerous act. The stabbing arose during an argument and was described as an unplanned, spontaneous act.

The defendant and the deceased had lived a nomadic lifestyle, spending considerable time in wilderness areas. Both had significant histories of alcohol and drug use, and the defendant had a background marked by domestic violence and chronic substance disorder. These circumstances were central to the sentencing remarks.

  • What is the correct process for nominating a limiting term under s 23 of the MH (FP) Act after a finding of guilt at a special hearing?
  • What sentence would have been appropriate had the defendant been fit to stand trial and convicted of manslaughter at a normal trial?
  • How does the defendant's mental condition, including her chronic alcohol and drug disorder, bear on her moral culpability and the appropriate limiting term?

Decision

Under s 23(1)(b) of the MH (FP) Act, the court is required to nominate a "limiting term" rather than sentence the offender in the ordinary way. A limiting term is the maximum period for which the person may be detained in institutional care. It cannot be divided into minimum and additional terms, and it must represent the court's best estimate of the total sentence that would have been appropriate had the offender been fit to stand trial and found guilty at a normal trial.

Hall J applied standard sentencing principles, including those identified in Veen v R (No 2): protection of society, deterrence, retribution, and reform. His Honour also recognised that the purpose of the comparative exercise is to ensure the limiting term is neither more harsh nor more lenient than an equivalent sentence for a fit offender. Manslaughter was noted to cover an exceptionally wide range of conduct and culpability, making sentencing in such cases notoriously difficult.

The defendant's chronic alcohol and drug disorder was found to be causally linked to her intoxicated state at the time of the offence. Medical evidence connected that disorder to her history of domestic violence. Hall J accepted that the disorder diminished her moral culpability, consistent with the principles in R v Fernando and Bugmy v R. The act itself was characterised as spontaneous and impulsive rather than planned, placing it towards the lower end of the culpability range for manslaughter.

Taking all objective and subjective circumstances into account, Hall J nominated a limiting term of 5 years. The defendant was then referred to the Mental Health Review Tribunal, which would assess her ongoing mental health needs and determine the appropriate form of institutional care.

Orders Made

  • A limiting term of 5 years is nominated, commencing 1 April 2016.
  • The defendant is referred to the Mental Health Review Tribunal pursuant to s 24 of the Mental Health (Forensic Provisions) Act 1990.
  • The defendant is to be held in custody in an appropriate institution until further assessment by the Tribunal.

Key Takeaways

  • Under the MH (FP) Act, a limiting term cannot be divided into minimum and additional components; only a total term is nominated, calibrated to what would have been appropriate for a fit offender at a normal trial.
  • A finding of guilt at a special hearing is made "on the limited available evidence," and the subsequent limiting term must reflect that the process differs materially from a conventional criminal trial.
  • Chronic alcohol and drug disorder, particularly where it is causally connected to the offending conduct and is itself linked to a history of domestic violence, is a relevant mitigating factor going to moral culpability in sentencing for manslaughter.
  • The Supreme Court confirmed that the defendant's mental condition bears on the limiting term in at least three distinct ways: culpability, likelihood of reoffending, and community protection, with the weight of each depending on the particular circumstances.
  • Once a limiting term is nominated, the court refers the matter to the Mental Health Review Tribunal, which then exercises independent jurisdiction to determine the appropriate form of ongoing detention or treatment.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 14, 16, 19, 21, 23, 24, 27
- Crimes Act 1900 (NSW), s 24 (manslaughter, maximum 25 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 28(4)

Cases
- Veen v R (No 2) (1988) 164 CLR 465
- Bugmy v R (2013) 249 CLR 571
- R v Fernando (1992) 76 A Crim R 58
- R v Blacklidge (NSWCCA, 12 December 1995, unreported)
- R v Mitchell [1999] NSWCCA 120
- R v Green [1999] NSWCCA 97
- R v Henry (1999) 46 NSWLR 346
- R v AN [2005] NSWCCA 239
- Courtney v R (2007) 172 A Crim R 371
- Agha v R [2008] NSWCCA 153
- R v Quealey [2011] NSWSC 42
- R v Engert (1995) 84 A Crim R 67
- R v Qutami [2001] NSWCCA 353
- R v Blanks [2016] NSWSC 361 (the earlier special hearing judgment)