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Supreme Court 28 September 2018

R v Connors

[2018] NSWSC 1439

Homicide
CRIME SENTENCING MANSLAUGHTER OFFENDER WITH SCHIZOPHRENIA OFFENDER GENUINELY REMORSEFUL LOW RISK OF REOFFENDING

Citation: R v Connors [2018] NSWSC 1439
Court: Supreme Court of New South Wales
Date: 28 September 2018
Judge: R A Hulme J

Background

The offender, a 29-year-old man with undiagnosed and untreated schizophrenia, killed his mother at their home in Sylvania on 15 May 2017 by striking her with a hammer while she slept. He had been experiencing persistent auditory hallucinations telling him that unidentified persons were coming to steal his mother's soul, and he believed that killing her himself was the only way to ensure her soul reached heaven. He understood the physical nature of his actions but was substantially impaired in his capacity to judge whether they were right or wrong and to control his conduct.

The Crown accepted a plea of guilty to manslaughter on the basis of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 (NSW), rather than proceeding to trial on a murder charge. The court therefore proceeded to sentence on that basis.

The offender had a long history of marginal engagement with the mental health system, a background of alcohol and cannabis use, limited employment, and no significant social relationships. He had been living with his mother, was unemployed, and had not taken any medication for approximately a month before the offence.

  • How to assess the objective seriousness of a manslaughter committed in circumstances of substantial impairment by abnormality of mind
  • Whether taking mental illness into account in assessing objective seriousness constitutes impermissible double counting when it is also taken into account as a mitigating factor
  • The weight to be given to the purposes of sentencing, including deterrence, retribution, and denunciation, where the offender suffers from severe mental illness
  • Whether special circumstances justified a reduction in the non-parole period below the statutory default
  • The appropriate discount for a plea of guilty entered at the earliest reasonable opportunity

Decision

Hulme J sentenced the offender to a total term of 5 years and 8 months imprisonment, comprising a non-parole period of 3 years and a balance of term of 2 years and 8 months, back-dated to the date of arrest on 15 May 2017. Without the guilty plea, the sentence would have been 7 years and 6 months.

His Honour declined to assess objective seriousness by placing the offence on a comparative scale, noting that such an approach is not appropriate in manslaughter cases given the wide variety of circumstances in which the offence can be committed. The court found that comparison with sentencing statistics was of limited use because the data pools together manslaughter by unlawful and dangerous act, criminal negligence, provocation, excessive self-defence, and substantial impairment cases. A table of comparable substantial impairment cases provided a more useful yardstick.

On the question of double counting, the court held that there is no impermissible double counting in taking mental illness into account both when assessing objective seriousness and when identifying mitigating factors. The offender's schizophrenia substantially reduced the need for denunciation, retribution, and both personal and general deterrence. His Honour found the offender to be genuinely remorseful and assessed his risk of reoffending as low, particularly given his acceptance of treatment and improved compliance with medication while in custody.

Special circumstances were found to exist because the offender would require extended psychiatric supervision, medication monitoring, drug relapse prevention support, and general daily living assistance upon release. His mother, who had been his primary support throughout his life, was now gone. These factors justified extending the parole period beyond the statutory default, resulting in the non-parole period representing a smaller proportion of the total sentence than usual.

Orders Made

  • Convicted of manslaughter
  • Sentenced to imprisonment with a non-parole period of 3 years and a balance of term of 2 years and 8 months (total: 5 years and 8 months)
  • Sentence back-dated to commence 15 May 2017
  • Eligible for release on parole on 14 May 2020
  • Registrar directed to forward psychiatric reports to Justice Health and Forensic Mental Health Network

Key Takeaways

  • Under s 23A of the Crimes Act 1900 (NSW), where an offender's capacity to judge the wrongness of their actions and to control their conduct is substantially impaired by mental illness, a finding of manslaughter rather than murder is available, with the maximum penalty remaining 25 years imprisonment.
  • The Supreme Court confirmed that considering mental illness at multiple stages of sentencing analysis does not constitute impermissible double counting; it properly informs both the assessment of objective culpability and the identification of mitigating circumstances.
  • Where severe mental illness underlies the commission of a homicide, the sentencing purposes of denunciation, retribution, and personal and general deterrence are significantly reduced in weight.
  • Special circumstances warranting a departure from the default non-parole period ratio can arise where an offender with serious and ongoing mental illness will require intensive, long-term community support and supervision upon release.
  • A 25 per cent discount applied to the sentence for a guilty plea entered at the earliest reasonable opportunity, consistent with established sentencing practice in New South Wales.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind)

Cases:
No specific cases were cited in the portions of the judgment provided.