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Supreme Court 19 May 2017

R v MB

[2017] NSWSC 619

Homicide
SENTENCING MANSLAUGHTER CRIMES ACT, S 23A LATER FOUND FIT NON CUSTODIAL SENTENCE IMPOSED BOND

Citation: R v MB [2017] NSWSC 619
Court: Supreme Court of New South Wales
Date: 19 May 2017
Judge: Beech-Jones J

Background

The offender, identified only as MB to protect the identity of the deceased child, pleaded guilty to the manslaughter of her infant daughter, OB, who died on 18 November 2010 at North Strathfield. OB was just under seven months old at the time of her death. The Crown accepted the plea in full satisfaction of a murder indictment on the basis that the partial defence of substantial impairment by abnormality of mind applied under s 23A of the Crimes Act 1900.

In the months before OB's death, MB had developed an intense and escalating preoccupation that OB had a genetic abnormality, particularly dwarfism, despite repeated medical assessments confirming the child was healthy. MB conducted thousands of internet searches on the topic, sought multiple specialist consultations, and was referred to psychiatric services. Her anxiety and distress worsened significantly over this period.

On the day of OB's death, MB called triple zero to report that the child had drowned in the bath. Ambulance officers found OB submerged face down in the bathtub and were unable to resuscitate her. MB had refused, during the triple zero call, to re-enter the bathroom or render assistance.

  • Whether MB's guilty plea to manslaughter, on the basis of substantial impairment under s 23A of the Crimes Act 1900, was properly accepted by the Crown
  • What sentence was appropriate, having regard to the nature and circumstances of the offence and MB's mental state at the time
  • Whether the standard sentencing considerations of general deterrence, denunciation, and punishment were diminished by reason of MB's mental illness
  • Whether a non-custodial sentence was available and appropriate in the circumstances
  • What weight to give to MB's prior period in custody, her progress since, and her ongoing psychiatric treatment

Decision

Psychiatric evidence before the court, accepted by both parties, established that MB was suffering from prodromal symptoms of schizophrenia at the time of the offence. These included perseveration of thought, heightened anxiety, intermittent hallucinations, and perceptual distortions. Expert opinion held that MB had been acting under a delusion that OB had a genetic abnormality and that her underlying mental illness had substantially impaired her capacity to control her actions. Beech-Jones J accepted this evidence and found that MB's moral culpability was significantly reduced by reason of her mental state.

The court noted that MB had previously been found unfit to stand trial, had served a prior period in custody, and had been under mental health supervision for a substantial period. Since her release, she had complied with mental health treatment and her condition had stabilised. The court found that the purposes of sentencing ordinarily given greatest weight in cases of serious violence, namely general deterrence, denunciation, and punishment, were of substantially reduced application given MB's mental illness.

Beech-Jones J concluded that a non-custodial sentence was appropriate. The court observed that MB had already served time in custody and had demonstrated genuine progress in managing her mental health. Imposing further imprisonment was not warranted in circumstances where MB's culpability was reduced, her rehabilitative prospects were positive, and the usual justifications for custodial sentences were significantly diminished by her psychiatric condition.

Orders Made

  • MB was sentenced to a four-year good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999, subject to the following conditions:
  • MB must appear before the court if required during the term of the bond
  • MB must be of good behaviour throughout the bond period
  • MB must notify the Registrar of her residential address within 14 days, and notify the court and NSW Probation and Parole Service of any change of address within 14 days of that change
  • MB must report to the nearest Probation and Parole Service office by 2 June 2017
  • MB must accept the supervision and directions of Probation and Parole Service officers, including directions concerning attendance upon psychiatric specialists and mental health services, and compliance with those directions

Key Takeaways

  • Where an offender's mental illness substantially impairs moral culpability, the sentencing purposes of general deterrence, denunciation, and punishment are correspondingly reduced in weight, as confirmed here by the Supreme Court.
  • A non-custodial sentence remains available for manslaughter in New South Wales, even where the victim was a vulnerable infant, if the circumstances of the offender's mental state and overall situation justify such an outcome.
  • Substantial impairment under s 23A of the Crimes Act 1900 operates as a partial defence reducing murder to manslaughter; the sentencing court then separately assesses how the same mental illness bears on the appropriate sentence.
  • Prior time spent in custody, compliance with mental health treatment following release, and demonstrated rehabilitation are relevant factors that a sentencing court may weigh in favour of a non-custodial disposition.
  • Manslaughter is a "serious and violent offence" within the meaning of s 5A of the Crimes (High Risk Offenders) Act 2006, and the court is obliged to advise an offender of that legislation's existence and potential application at the time of sentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 23A, 24
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 54A, 96
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 25C
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Mental Health (Forensic Provisions) Act 1990 (NSW)
- Mental Health Act 2007 (NSW)

Cases
- Barbieri v R [2016] NSWCCA 295
- Berrier, Steven John v R [2009] NSWCCA 40
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Blacklidge (NSWCCA, 12 December 1995, unreported)
- R v Cooper [2001] NSWSC 769
- R v Howcher [2004] NSWCCA 179; 146 A Crim R 371
- R v Israil [2002] NSWCCA 255
- R v LTN [2011] NSWSC 614
- R v Mathers [2011] NSWSC 339
- R v MB (No 2) [2014] NSWSC 1755
- R v MB (No 3) [2014] NSWSC 1796
- R v MB [2016] NSWSC 985
- R v Olbrich [1999] HCA 54; 199 CLR 270
- R v Pope [2002] NSWSC 397
- R v Quinn (No 2) [2016] NSWSC 1244
- Shine v R [2016] NSWCCA 149