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Supreme Court 25 May 2018

R v Homann

[2018] NSWSC 757

HomicideDrugsDomestic & family violence
CRIME SENTENCING MURDER WHETHER PSYCHOSIS DRUG INDUCED PSYCHOSIS VICTIM PREGNANT AT TIME OF OFFENCE

Citation: R v Homann [2018] NSWSC 757
Court: Supreme Court of New South Wales
Date: 25 May 2018
Judge: McCallum J

Background

The offender was convicted by a jury of murdering his pregnant de facto partner at their shared home in Mount Druitt on 21 September 2015. The victim was stabbed 49 times with a kitchen knife; she was 21 weeks pregnant at the time and neither she nor the unborn child survived. The offender had been using methylamphetamine ("ice") extensively for some years and was displaying symptoms of psychosis in the hours leading up to the killing.

At trial, the offender raised the defence of mental illness, the partial defence of substantial impairment by abnormality of mind, and self-defence. The jury rejected all three defences. The central disputes at trial concerned the offender's mental state and whether he was acting in self-defence.

The sentencing proceedings required the court to determine the appropriate penalty, including where the offence sat on the range of objective seriousness, whether the offender's psychosis diminished his moral culpability, and whether several statutory aggravating factors applied.

  • Whether the offence fell above or below the mid-range of objective seriousness for murder
  • Whether the offender's psychosis (disputed as either drug-induced or a chronic psychotic illness) reduced his moral culpability for sentencing purposes
  • Whether the offender's prior knowledge of the risk of drug-induced psychosis was relevant as an aggravating factor
  • Whether the victim's pregnancy at the time of the offence was an aggravating circumstance
  • Whether the domestic violence context and the fact that the offence occurred in the victim's home were separately aggravating factors
  • The weight to be given to the standard non-parole period of 20 years as a sentencing guidepost

Decision

Objective seriousness and the role of psychosis. McCallum J found that, setting aside the psychosis, the sheer ferocity of the attack, the intent to kill, the victim's pregnancy, and the domestic context placed the offence clearly above the mid-range of objective seriousness. The court acknowledged that psychosis could, in principle, either be treated as reducing objective seriousness or as a personal factor reducing moral culpability. However, Her Honour concluded that in this case the psychosis did not diminish the offender's culpability, regardless of how it was classified.

Drug-induced psychosis and prior knowledge of risk. A central reason for declining to reduce culpability was the court's acceptance of the Crown psychiatrist's view that the psychosis was drug-induced rather than the product of a chronic mental illness. Critically, the offender had previously experienced drug-induced psychosis and had been explicitly warned of the risk of further psychotic episodes if he continued using ice. His decision to continue using the drug despite that knowledge meant that he could not rely on the resulting psychosis to diminish his moral responsibility.

Aggravating factors. The court treated the victim's pregnancy as an aggravating factor under section 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW), noting the offender was aware of the pregnancy. The domestic violence context was also treated as an aggravating circumstance. Her Honour gave separate consideration to whether committing the offence in the victim's home was an independent aggravating factor; on the court's analysis, the domestic setting and the location in the victim's home were treated as closely related but the domestic violence character of the offence was identified as the principal aggravating feature.

Sentence. Taking all factors into account, the court imposed a total term of 30 years' imprisonment, with a non-parole period of 22 years and 6 months. The non-parole period exceeded the 20-year standard non-parole period, reflecting the court's assessment that the offence was above mid-range in objective seriousness and that no meaningful reduction for psychosis was warranted.

Orders Made

  • The offender was convicted of the murder of the victim on 21 September 2015.
  • Total sentence: 30 years' imprisonment.
  • Non-parole period: 22 years and 6 months, commencing 22 September 2015 and expiring 21 March 2038.
  • Balance of term: 7 years and 6 months, expiring 21 September 2045.
  • First eligible parole date: 21 March 2038.
  • The offender's legal advisors undertook to advise him of the operation of the Crimes (High Risk Offenders) Act 2006 (NSW).

Key Takeaways

  • A finding of psychosis at the time of a murder does not automatically reduce moral culpability; the sentencing court must assess the cause and degree of the mental impairment and whether the offender contributed to that condition through voluntary conduct.
  • Where an offender continued using a drug after being specifically warned of the risk of drug-induced psychosis, the resulting psychotic state will not diminish culpability to the same extent as a psychosis arising from a chronic illness beyond the offender's control.
  • Under section 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the victim's pregnancy is a statutory aggravating factor where the offender was aware of it.
  • The domestic violence character of an offence operates as a distinct aggravating factor in sentencing, separate from any consideration of the location of the offence.
  • Rejection of mental illness and substantial impairment defences by a jury does not foreclose a finding at sentencing that psychosis diminished culpability, but it equally does not require such a finding.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 19A, 23A, 418
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(eb), 21A(3)(b), 28(4), 54B, Pt 4 Div 1A Table 1, 61(1)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)

Cases
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Yeung v R [2018] NSWCCA 52
- Cherry v R [2017] NSWCCA 150
- Jonson v R [2016] NSWCCA 286
- Potts v R (2012) 227 A Crim R 217; [2012] NSWCCA 229
- R v Bell (1985) 2 NSWLR 466
- R v Fraser [2005] NSWCCA 77
- R v Gagalowicz [2005] NSWCCA 452
- R v Halloun [2014] NSWSC 1705
- R v Stephenson [2007] NSWSC 672
- R v Valiukas [2009] NSWSC 808