Citation: R v Parker (No 2) [2016] NSWSC 813
Court: Supreme Court of New South Wales
Date: 14 June 2016
Judge(s): Rothman J
Background
The offender, an Aboriginal woman and Wiradjuri elder, pleaded not guilty to murder but guilty to manslaughter following the death of her husband. A jury acquitted her of murder and convicted her of manslaughter, consistent with her plea. The fatal incident occurred on 16 December 2013 at the couple's shared home in West Wyalong.
On the day in question, both the offender and the deceased had been drinking heavily throughout the day. The deceased, who had longstanding issues with alcohol abuse and self-harm connected to severe psychological trauma, inflicted serious wounds on himself, including a deep chest wound. The offender took the knife from him and subsequently stabbed him once in the back. The wound punctured his lung and caused a fatal transection of an intercostal artery. The deceased walked outside and died on the porch, attended by neighbours the offender had alerted.
The offender had been held on remand since the date of her arrest. Her background included a deeply traumatic upbringing, physical and sexual abuse, a history of violent relationships, and longstanding mental health difficulties. All psychiatrists who examined her diagnosed her with cognitive disorders.
Legal Issues
- What was the objective seriousness of the manslaughter, taking into account the absence of intent to kill or cause grievous bodily harm?
- Whether substantial impairment of the mind (as an alternative defence to murder, relevant to context) bore on sentencing.
- How the offender's severe cognitive impairment and alcohol intoxication affected the assessment of culpability.
- What weight should be given to the offender's prior criminal record, including prior violence, in fixing the sentence?
- What discount applied for the early guilty plea, and whether special circumstances existed to vary the standard ratio of non-parole period to head sentence?
Decision
Rothman J assessed the objective seriousness of the offence as below mid-range. The offence was neither planned nor premeditated. The offender had no intent to kill or cause really serious injury, and the court found the Crown had not proved beyond reasonable doubt that she formed even a momentary intent to do so. Her severe executive functioning impairment, placing her in the bottom one percentile of the population, combined with heavy intoxication, also meant she was incapable of reckless disregard for human life. Alternatively, his Honour found that, if intent had been established, substantial impairment of the mind was proved on the balance of probabilities.
The use of a weapon was noted as a potentially aggravating feature, but its significance was reduced given the absence of intent. The offender's prior criminal record, which included personal violence, did not increase objective seriousness but did elevate the weight given to retribution, deterrence, and community protection, consistent with the principles in Veen (No 2). The offence occurring in what was also the offender's own home was not treated as an aggravating factor.
On the subjective side, Rothman J gave significant weight to the offender's Aboriginal background, traumatic history, and cognitive impairment, consistent with the principles in R v Fernando and Bugmy v The Queen. The offender's genuine and palpable remorse was a further mitigating factor, as was the early guilty plea to manslaughter. Specific deterrence was not a significant consideration, and the offender's mental condition made her an inappropriate vehicle for general deterrence.
His Honour adopted a head sentence of 10 years as a starting point, applied a 25% discount for the early plea, and found special circumstances justifying a departure from the standard non-parole period to head sentence ratio. The resulting sentence was a non-parole period of four years and a further term of three and a half years.
Orders Made
- The offender was convicted of manslaughter of Kenneth Wayne Parker on 16 December 2013 at West Wyalong.
- Non-parole period of four years' imprisonment, commencing 16 December 2013 and concluding 15 December 2017.
- Further term of three and a half years, concluding 15 June 2021.
- First eligible for release on parole on 15 December 2017.
Key Takeaways
- The Supreme Court confirmed that, even within a single offence category such as manslaughter, courts must assess relative objective seriousness across the full spectrum of circumstances covered by the offence before fixing a starting point.
- Severe cognitive impairment, assessed by expert evidence and placing the offender in the bottom one percentile of the population for executive functioning, was directly relevant both to the finding that intent could not be proved and to the overall assessment of culpability at sentence.
- Under R v Fernando and Bugmy v The Queen, an offender's Aboriginal background and history of profound disadvantage and trauma remain relevant considerations at sentencing, without diminishing the seriousness of the offence itself.
- A prior criminal record that includes personal violence does not automatically increase the objective seriousness of the current offence but can heighten the sentencing weight given to retribution, deterrence, and community protection, as confirmed in Veen (No 2).
- Special circumstances were found to exist where the offender's mental health conditions and cognitive impairment meant that a longer period on parole supervision was appropriate, justifying a non-parole period that represented a lower proportion of the head sentence than the standard ratio.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- R v Fernando (1992) 76 A Crim R 58
- R v McNaughton [2006] NSWLR 566; 163 A Crim R 381
- R v Shankley [2003] NSWCCA 253
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465