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Supreme Court 14 September 2018

R v Impson

[2018] NSWSC 1490

Homicide
CRIMINAL LAW SENTENCE MURDER A SINGLE STAB WOUND TO THE BACK INTENT TO CAUSE GRIEVOUS BODILY HARM MITIGATING FACTORS

Citation: R v Impson [2018] NSWSC 1490
Court: Supreme Court of New South Wales
Date: 14 September 2018
Judge: Walton J

Background

The offender was convicted by jury of the murder of a 39-year-old man at Windang, New South Wales, on 26 October 2014. The two had met only six to eight weeks before the offence and were acquaintances rather than partners. At the time of the killing, the offender was living in a tent on an isolated, unpopulated island.

At trial, the offender raised self-defence and the partial defence of substantial impairment by abnormality of mind. The jury rejected both defences and returned a guilty verdict on murder. The offender had entered a plea of guilty to manslaughter at arraignment, but the Crown did not accept that plea in satisfaction of the indictment.

The Crown proceeded on the basis that the offender intended to cause grievous bodily harm rather than to kill. The killing involved a single stab wound to the back of the deceased.

  • Whether the offender's level of culpability was so extreme as to require a life sentence, or whether a finite term of imprisonment was appropriate
  • How to characterise the objective seriousness of the offence on the spectrum of murder cases
  • Whether the offender's mental illness had a causal connection to the offending conduct sufficient to reduce her moral culpability, given the jury's rejection of the substantial impairment defence
  • The weight to be given to mitigating subjective factors, including the absence of premeditation, remorse, and low risk of reoffending
  • Whether special circumstances existed to justify a variation of the standard non-parole period ratio

Decision

Walton J sentenced the offender to a finite term rather than life imprisonment, finding that the circumstances did not approach the extreme level of culpability that would require a life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The offence was placed in the low range of objective seriousness for murder. The killing was unplanned and spontaneous, involved a single stab wound, and the Crown relied only on an intention to inflict grievous bodily harm rather than an intention to kill.

Although the jury rejected the substantial impairment defence, the sentencing court was still required to consider whether the offender's mental illness had a causal connection to the offending conduct. This is a distinct question from the jury's verdict: the jury's rejection of the partial defence does not prevent the sentencing court from finding, on the balance of probabilities, that mental illness contributed to the offending. His Honour found that such a causal connection was established, which reduced the offender's moral culpability.

The court also weighed a range of subjective factors. The offender demonstrated remorse, posed a low risk of reoffending, and had a background that included an itinerant and socially disconnected lifestyle. These matters, together with the mental illness findings, reduced the weight to be given to both general and specific deterrence. His Honour noted that the reduced sentence did not reflect any devaluation of the victim's life; rather, it reflected the particular circumstances of this offence on the full spectrum of murder cases.

Special circumstances were found to exist, justifying a departure from the standard non-parole period ratio. The court accepted that the offender would benefit from an extended period of post-release supervision given her ongoing need for medication, counselling, and support in navigating community life.

Orders Made

  • The offender was convicted of the murder of Michael Insley.
  • Sentenced to imprisonment with a non-parole period of 12 years, commencing 26 October 2014 and expiring 25 October 2026.
  • Balance of term of 6 years, commencing 26 October 2026 and expiring 25 October 2032.
  • Eligible for release on parole on 25 October 2026.

Key Takeaways

  • A jury's rejection of the partial defence of substantial impairment by abnormality of mind does not foreclose the sentencing court from finding, on the balance of probabilities, that a causal connection exists between the offender's mental illness and the offending conduct. That finding can reduce moral culpability at sentence.
  • Where murder involves no premeditation, a single wound, and an intention to cause grievous bodily harm rather than to kill, the offence may be placed in the low range of objective seriousness for that crime, even though all murders remain gravely serious.
  • Reduced moral culpability arising from mental illness also reduces the weight given to general and specific deterrence as sentencing considerations.
  • Special circumstances justifying a longer parole period were established where the offender required ongoing psychiatric medication, counselling, and community support following a history of social disconnection and an itinerant lifestyle.
  • Sentencing for murder involves an "intuitive synthesis" of all relevant factors; comparable decisions offer general guidance toward consistency, but each case is determined on its own facts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21(1), 28, 61(1)

Cases
- Muldrock v The Queen (2011) 244 CLR 120
- Cheung v R (2001) 209 CLR 1
- R v Olbrich (1999) 199 CLR 270
- Isaacs v R (1997) 41 NSWLR 374
- R v Spathis; R v Patsalis [2001] NSWCCA 476
- R v Tula [2015] NSWCCA 8
- R v Morris [2017] NSWSC 637
- Aslan v R [2014] NSWCCA 114
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- R v Israil [2002] NSWCCA 255
- R v Fahda [2013] NSWCCA 86
- R v Bell (1985) 2 NSWLR 466
- R v Letteri [1992] NSWCCA (unreported)