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Supreme Court 31 May 2019

R v Cadman

[2019] NSWSC 634

Homicide
CRIMINAL LAW SENTENCE INTENTION TO KILL OFFENCE GROSSLY OUT OF CHARACTER SENTENCE IMPOSED

Citation: R v Cadman [2019] NSWSC 634
Court: Supreme Court of New South Wales
Date: 31 May 2019
Judge(s): Button J

Background

The offender, a man aged 51 at the time of the offence, had been in a relationship of approximately eight years with the deceased, a woman aged 67. They lived together in a flat in Toronto, NSW. On the evening of 3 December 2016, the offender armed himself with a large kitchen knife, entered the bathroom where the deceased was sitting on the toilet while dyeing her hair, and stabbed her five times. One wound penetrated her heart and caused her death.

The offender pleaded not guilty to murder but guilty to manslaughter, relying on the partial defence of substantial impairment by abnormality of mind. The Crown did not accept that plea. After a two-week jury trial confined to that issue, the jury returned a verdict of guilty of murder on 9 April 2019.

Sentence proceedings followed on 29 May 2019, with Button J delivering remarks and imposing sentence on 31 May 2019.

  • What was the appropriate assessment of the objective gravity of this murder, having regard to the circumstances of the offence?
  • How should the offender's substantially reduced moral culpability, arising from acute alcohol withdrawal syndrome at the time of the offence, be weighed against the objective seriousness of the killing?
  • Whether the offender held an intention to kill at the time of the stabbing.
  • What sentence, including head sentence and non-parole period, properly reflected the statutory guideposts of the standard non-parole period of 20 years and the maximum of life imprisonment?

Decision

Button J found beyond reasonable doubt that the offender intended to kill the deceased. The number, location, and depth of the stab wounds compelled that conclusion, even though defence counsel argued the circumstances did not permit it. The attack was spontaneous and unplanned, with no preceding argument or raised voices, and no provocation from the deceased whatsoever.

On objective gravity, the judge characterised the offence as very grave. It involved an intention to kill, a deadly weapon, a defenceless victim in her own home in circumstances of particular vulnerability, and, in the judge's own words, could on one analysis be viewed as an act of domestic violence.

However, the judge gave substantial weight to the extraordinary circumstances of the offender's mental state. Two days before the offence, the offender had abruptly stopped drinking without seeking medical assistance. This triggered acute alcohol withdrawal syndrome. By the morning before the fatal evening, he had attended a medical centre presenting with symptoms consistent with withdrawal. By the early hours of the following Sunday, he was largely incoherent during a police interview. By Monday morning, he was suffering delirium tremens and was transferred to hospital rather than gaol. Button J found this progression of acute neurological deterioration substantially reduced the offender's moral culpability, even though the jury had rejected substantial impairment as a complete partial defence.

The judge also took into account the complete absence of any prior violence throughout the offender's life, including toward the deceased, his positive character, and that the offence was grossly out of character. These mitigating features were balanced against the objective gravity. The head sentence was set at 20 years, reflecting that anything less would not adequately acknowledge the gravity of the killing, while the non-parole period of 14 years reflected the significant reduction in moral culpability.

Orders Made

  • The offender was convicted of murder.
  • Head sentence: 20 years imprisonment.
  • Non-parole period: 14 years, commencing 3 December 2016 and expiring 2 December 2030.
  • Parole period: 6 years, expiring 2 December 2036.
  • First eligible parole date: 2 December 2030.

Key Takeaways

  • The Supreme Court confirmed that even where a jury rejects a partial defence of substantial impairment, the underlying psychiatric or neurological circumstances can still significantly reduce a sentencer's assessment of moral culpability.
  • Objective gravity and moral culpability are conceptually distinct inquiries in sentencing for murder: a killing may be objectively very grave while the offender's blameworthiness is substantially diminished by mental or physical condition at the time.
  • Acute alcohol withdrawal syndrome, where medically established and corroborated by contemporaneous evidence, can constitute a significant mitigating factor in sentencing, separate from and independent of its role as a partial defence.
  • The standard non-parole period of 20 years for murder operates as a legislative guidepost rather than a starting point, and the sentencing court is required to situate the particular offence within the full spectrum of murders before arriving at an appropriate sentence.
  • A complete absence of prior violence, an offence that is grossly out of character, and the absence of any provocation are each relevant to the sentencing calculus, even where the objective circumstances of the killing are assessed as very grave.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): provisions relating to murder, partial defence of substantial impairment, maximum penalty of life imprisonment, and standard non-parole period of 20 years for murder.

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