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Court of Criminal Appeal 14 June 2017

Biddle v R

[2017] NSWCCA 128

Homicide
CRIMINAL LAW SENTENCE APPEAL MURDER PAROLE PERIOD OF 18 YEARS WHETHER SENTENCE MANIFESTLY EXCESSIVE NO ERROR IDENTIFIED

Citation: Biddle v R [2017] NSWCCA 128
Court: NSW Court of Criminal Appeal
Date: 14 June 2017
Judge(s): Hoeben CJ at CL, Rothman J, Price J

Background

The applicant, a 60-year-old man, was convicted by jury of murdering his estranged wife of 42 years. On the night of the offence, following an argument in which the deceased told him their marriage was over and he would be removed from the property, the applicant retrieved an iron bar from a work shed and attacked the deceased in her home, striking her repeatedly on the head. She died in hospital the following day.

The applicant had entered a plea of not guilty to murder and guilty to manslaughter at trial, relying on defences of provocation and substantial impairment of the mind. The latter defence was based on the long-term neurological effects of a viral meningitis illness he had suffered in 1993 to 1994. The jury rejected both defences and returned a verdict of murder.

Garling J sentenced the applicant in the Supreme Court to a total term of 27 years' imprisonment, comprising a non-parole period of 18 years and a balance of term of 9 years. The applicant sought leave to appeal against that sentence, requiring an extension of time given the delay in bringing the application.

  • Whether the sentencing judge erred by failing to consider the applicant's mental impairment and intellectual functioning when assessing the objective seriousness of the offence
  • Whether the sentencing judge erred by failing to adequately consider that mental impairment when assessing the applicant's subjective circumstances and setting the sentence
  • Whether the sentencing judge was correct in finding that the applicant's conduct before and during trial did not merit a lesser sentence on the basis of facilitating the administration of justice
  • Whether the sentence was manifestly excessive

Decision

Mental impairment and objective seriousness. The Court found no error in the sentencing judge's approach. Garling J had in fact taken the applicant's mental condition into account, concluding that it contributed to a degree of disinhibition on the night but did not reduce his moral culpability to the extent that objective seriousness was significantly diminished. The Court confirmed that while mental impairment can be relevant to objective seriousness where it reduces culpability, the sentencing judge's factual findings on the limited causal connection between the impairment and the offending were open to him on the evidence.

Mental impairment and subjective circumstances. The Court held that the sentencing judge had adequately addressed the applicant's mental condition as a subjective factor. Rothman J observed that whether or not the mental impairment had been taken into account in either the objective or subjective assessment, it would have made no difference to the result. The Court also confirmed that mental impairment remains relevant as a subjective matter bearing on punishment, rehabilitation, general deterrence, and the protection of society, even where it does not affect objective seriousness.

Facilitation of justice. The applicant argued that his immediate confession to family members, his disclosure of the location of the weapon, and his ultimate guilty plea to manslaughter (rejected by the jury) each constituted facilitation of the administration of justice under s 22A of the Crimes (Sentencing Procedure) Act 1999. The Court agreed with the sentencing judge that none of these steps materially assisted the administration of justice in a way that warranted a sentencing discount. The applicant had been apprehended at the scene, and his cooperation added nothing that would otherwise have been unavailable to the prosecution.

Manifest excess. The Court found the sentence neither unreasonable nor plainly unjust. It fell within the range appropriate for this offence and this offender, having regard to the premeditation involved (including the applicant's deliberate approach to avoid alerting the deceased), the sustained and brutal nature of the attack on a helpless victim, and the limited weight of the mitigating factors.

Orders Made

  • Extension of time for bringing the application for leave to appeal granted
  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Mental impairment can, in principle, be relevant to the objective seriousness of an offence where it ameliorates culpability, but a sentencing judge's factual finding that only a limited causal connection existed between the impairment and the offending will not be disturbed on appeal if it was open on the evidence.
  • Rothman J confirmed there is no tension between the High Court's decisions in Muldrock v The Queen (2011) 244 CLR 120 and The Queen v Kilic (2016) 91 ALJR 131: a distinction remains between the objective seriousness of the offender's conduct and the overall categorisation of the offence.
  • Under s 22A of the Crimes (Sentencing Procedure) Act 1999, a sentencing discount for facilitating the administration of justice requires that the offender's conduct genuinely assisted the prosecution in a material way; immediate confessions made at the scene where the offender has already been apprehended may not meet that threshold.
  • No error was established in the sentencing judge's treatment of the standard non-parole period for murder as a guidepost, consistent with the approach required following Muldrock.
  • In dismissing the appeal, the Court reinforced that sentencing for individual offenders is not an instrument for broader social reform, and that objectives beyond those recognised in statute and common law principle fall outside legitimate sentencing considerations.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- The Queen v Kilic [2016] HCA 48; 91 ALJR 131
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Munda v State of Western Australia [2013] HCA 38; 249 CLR 600
- House v R (1936) 55 CLR 499
- R v Biddle [2011] NSWSC 1262 (the sentence judgment below)
- AB v R [2014] NSWCCA 339
- Alkanaan v Regina [2017] NSWCCA 56
- Cowan v R [2015] NSWCCA 118
- Devaney v R [2012] NSWCCA 285
- Elturk v R [2014] NSWCCA 61
- Martin v R [2015] NSWCCA 6
- McLaren v Regina [2012] NSWCCA 284
- Mulvihill v R [2016] NSWCCA 259
- Vaiusu v R [2017] NSWCCA 71