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Supreme Court 7 September 2018

R v Griffiths

[2018] NSWSC 1385

Homicide
CRIMINAL LAW TRIAL BY JURY MURDER VERDICT SENTENCE INSTINCTIVE SYNTHESIS OBJECTIVE SERIOUSNESS OF THE OFFENDING OFFENDER’S MORAL CULPABILITY

Citation: R v Griffiths [2018] NSWSC 1385
Court: Supreme Court of New South Wales
Date: 7 September 2018
Judge(s): Campbell J

Background

The offender was charged with murdering a homeless man in Tweed Heads on 27 September 2014. The victim, a 48-year-old New Zealand national, was sitting outside a shopping complex when the offender approached, initially grabbed him and pressed his thumbs into his eyes, then walked away. Shortly after, the offender described a "switch" flicking in his head, sprinted back, and struck the victim with his elbow with sufficient force to knock him from a bench to the pavement. The victim died in hospital three days later from a traumatic brain injury.

The offender pleaded not guilty to murder but guilty to manslaughter, on the basis of the partial defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 (NSW). The Crown did not accept that plea. At trial, all parties agreed that the offender's capacity for self-control was substantially impaired at the time by schizophrenia, which may not have been adequately managed by his then-current medication. The jury nonetheless returned a verdict of guilty of murder.

The sentencing proceedings required the court to assess the objective seriousness of the offending and the offender's moral culpability, taking into account the extensive psychiatric evidence and the offender's personal circumstances.

  • Whether the jury's verdict of murder was consistent with the accepted evidence of substantial mental impairment, and how the sentencing judge should treat that impairment for sentencing purposes
  • How to assess objective seriousness and moral culpability where an offender suffers from schizophrenia and a personality disorder, alongside a history of substance abuse and social deprivation
  • Whether the standard non-parole period for murder provided an appropriate guidepost for fixing the sentence
  • Whether the statutory ratio between non-parole period and additional term should be adjusted to account for the offender's need for ongoing community treatment upon release

Decision

Campbell J found that the sentencing court's task was to make independent findings of fact consistent with the jury's verdict, applying the criminal standard for aggravating facts and the civil standard for mitigating facts, following Cheung v The Queen and The Queen v Olbrich. The judge was satisfied beyond reasonable doubt that the offender intended to cause grievous bodily harm or death, based on the deliberate and forceful nature of the blow and the offender's own account of sprinting from a distance to strike the victim.

The judge accepted that the offender's schizophrenia significantly reduced his moral culpability. It was found that the impairment, while not sufficient to reduce murder to manslaughter in the jury's assessment, materially affected the offender's decision-making and the weight to be given to punitive and deterrent purposes of sentencing. The offender's background, including a troubled childhood, social disadvantage, and a history of mental illness managed with inadequate treatment, was treated as reducing his culpability further.

On objective seriousness, the judge assessed the offending as somewhat below the mid-range for murder. The victim was intoxicated, unknown to the offender, and entirely vulnerable. The attack, though brief, caused fatal injuries. The standard non-parole period of 20 years for murder was used as a statutory guidepost under the approach in Muldrock v The Queen, but the judge arrived at a significantly lower non-parole period after weighing all subjective factors.

The judge declined to adjust the statutory ratio between non-parole period and additional term to account for the offender's treatment needs upon release, finding that such an adjustment would amount to double-counting given the extent to which schizophrenia had already been taken into account throughout the sentencing exercise.

Orders Made

  • The offender was sentenced to 16 years imprisonment for murder
  • Non-parole period of 12 years, commencing 13 October 2014 and expiring 12 October 2026
  • Additional term of 4 years, commencing 13 October 2026 and expiring 12 October 2030
  • Sentence backdated to 13 October 2014 (date of arrest) under s 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • The offender was warned that the Crimes (High Risk Offenders) Act 2007 (NSW) may apply to him at the conclusion of his sentence

Key Takeaways

  • A jury's verdict of murder is not inconsistent with an agreed finding that the offender's self-control was substantially impaired by mental illness at the time of the offending; the jury may have been unsatisfied that the impairment was substantial enough to warrant reducing liability to manslaughter, even where both parties accepted some degree of impairment.
  • For sentencing purposes, the judge makes independent findings of fact, bound by the verdict but not required to adopt any particular version of events consistent with it; aggravating facts must be proved beyond reasonable doubt, while mitigating facts need only be established on the balance of probabilities.
  • Schizophrenia, personality disorder, and a background of social deprivation can substantially reduce an offender's moral culpability for murder, affecting the weight given to general deterrence and retributive purposes of sentencing.
  • Under Muldrock v The Queen, the standard non-parole period for murder operates as a legislative guidepost rather than a fixed benchmark, and the sentencing court applies instinctive synthesis across all relevant factors.
  • Adjusting the statutory ratio between non-parole period and additional term to accommodate an offender's need for post-release mental health treatment may constitute impermissible double-counting where mental illness has already been given full weight in determining the sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 19A, 23A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21, 22A, 47, 61
- Crimes (High Risk Offenders) Act 2007 (NSW)

Cases:
- Cheung v The Queen (2001) 209 CLR 1
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Israil [2002] NSWCCA 255
- R v Morris [2017] NSWSC 637
- R v Neave [2012] NSWSC 229
- Yun v R [2017] NSWCCA 317