Citation: R v Hill [2019] NSWSC 733
Court: Supreme Court of New South Wales
Date: 21 June 2019
Judge: Ierace J
Background
The offender pleaded guilty to the manslaughter of a stranger, following a random and unprovoked attack on Crown Street, Darlinghurst, on 3 November 2016. The offender punched and kicked the victim as they passed each other on the footpath, causing the victim to fall backwards and strike his head. The victim died in hospital five days later from blunt force head injuries.
The offender was originally charged with murder. Two forensic psychiatrists, one retained by each side, agreed that the offender was suffering from schizophrenia at the time of the attack and that his capacity to appreciate the wrongfulness of his actions was substantially impaired. On that basis, the offender had access to the partial defence of manslaughter by substantial impairment of mind under s 23A of the Crimes Act 1900 (NSW). The Crown accepted his guilty plea to that lesser charge.
The offender was 37 at the time of sentencing. He had a prior criminal history that included an armed robbery committed in 2002 and an escape from custody. His schizophrenia, which had likely been present since he was 18, had gone undiagnosed and untreated for many years. In the period before the offence, he had been living rough on the streets of Sydney and was not taking antipsychotic medication.
Legal Issues
- How does a diagnosis of schizophrenia affect the objective seriousness of the offence and the offender's moral culpability for sentencing purposes?
- How should the court balance reduced moral culpability (arising from mental illness) against the heightened danger the offender poses to the community?
- Whether the offender's lack of insight into his illness and his resistance to taking antipsychotic medication constituted "special circumstances" justifying a departure from the standard ratio between the non-parole period and the total sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW)?
- What discount should be applied for the early guilty plea?
Decision
Ierace J found that the offender's schizophrenia substantially reduced his moral culpability for the killing. The delusions driving his conduct meant he genuinely, though wrongly, believed the victim intended to harm him. That reduction in culpability was a significant mitigating factor in assessing the objective gravity of the offence.
However, the court also found that the mental illness simultaneously heightened the danger the offender presented to the community. His lack of insight into his condition, his longstanding resistance to taking antipsychotic medication, and his history of erratic and dangerous behaviour when unmedicated meant the community required protection. The court drew on the principles in Veen v R (No 2) (1988) 164 CLR 465, which recognise that protection of the community remains a legitimate sentencing consideration even where reduced culpability is established.
The court identified special circumstances warranting a variation from the standard non-parole period ratio. The extended parole period was justified by the need to provide a longer period of supervised support and monitoring in the community upon release, given the offender's lack of insight and the central role that untreated schizophrenia played in the offence. The court noted a history of lost opportunities to diagnose and treat the offender, including a recommendation made by a psychiatrist as far back as 2003 that was never acted upon.
An early guilty plea was recognised as a significant mitigating factor. The court calculated that the sentence without the plea would have been 10 years and 8 months, and reduced the total sentence accordingly to 8 years.
Orders Made
- The offender was sentenced to imprisonment comprising a non-parole period of 5 years and 6 months, with a balance of term of 2 years and 6 months, for a total sentence of 8 years.
- The sentence was backdated to 3 November 2016, with eligibility for parole on 2 May 2022.
- The Registrar was directed to forward copies of the psychiatric reports of Dr Jonathon Adams (four reports) and Dr Adam Martin (two reports) to Justice Health and the State Parole Authority for their consideration regarding the offender's placement in custody and on release.
Key Takeaways
- Under the substantial impairment partial defence in s 23A of the Crimes Act 1900 (NSW), a finding that mental illness substantially impaired the offender's capacity to appreciate the wrongfulness of their conduct reduces moral culpability but does not extinguish the court's obligation to consider community protection.
- Where mental illness both reduces an offender's moral culpability and increases the risk they pose to others, the Supreme Court confirmed that sentencing courts must weigh both considerations, consistent with the principles in Veen v R (No 2).
- Special circumstances justifying a departure from the standard non-parole ratio were established here by the offender's lack of insight into his illness and his resistance to antipsychotic medication, warranting a longer parole period to facilitate supervised reintegration.
- An early guilty plea to manslaughter by substantial impairment resulted in a reduction from a notional head sentence of 10 years and 8 months to a total sentence of 8 years.
- In cases involving offenders with serious mental illness, the court may recommend that psychiatric reports be forwarded to Justice Health and the State Parole Authority, rather than making more prescriptive orders about treatment or placement.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 23A, 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 28
Cases
- Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- GC v R [2018] NSWCCA 280
- R v Wilson (2005) 153 A Crim R 257; [2005] NSWCCA 112
- R v Keceski (Court of Criminal Appeal (NSW), 10 August 1993, unreported)