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District Court 16 October 2020

R v Mouawad

[2020] NSWDC 616

HomicideDomestic & family violence
SENTENCING REASONS FOR JUDGMENT BIPOLAR AFFECTIVE DISORDER SENTENCING OF MENTALLY ILL OFFENDERS DOMESTIC VIOLENCE LONG HISTORY OF MENTAL ILLNESS AND NON

Citation: R v Mouawad [2020] NSWDC 616
Court: District Court of New South Wales
Date: 16 October 2020
Judge: O'Brien AM DCJ

Background

The offender, a 57-year-old man, pleaded guilty to the manslaughter of his 72-year-old mother at Woonona on 18 February 2019. The Crown had originally been prepared to pursue a murder charge but accepted the manslaughter plea on the basis of substantial impairment by abnormality of mind under section 23A of the Crimes Act 1900. The underlying condition was bipolar affective disorder.

The facts were serious. Following an argument about gambling, the offender struck his mother multiple times to the head and face with a large piece of wood in the rear yard of their shared home, intending to kill her. He then left for a nearby RSL club, returned later that night to strike her again, hosed down the scene, disposed of a blood-stained plastic bag, and lied to the 000 operator, paramedics, and police before eventually being arrested.

The deceased had lived at the property for approximately 45 years. Victim impact statements were received from three family members, and the sentencing judge acknowledged the profound grief suffered by those who loved her.

  • What was the appropriate sentence for manslaughter by substantial impairment by abnormality of mind, having regard to the offender's mental illness?
  • To what extent did the offender's bipolar affective disorder reduce his moral culpability, beyond merely establishing the partial defence?
  • How should sentencing statistics and comparable cases for manslaughter be used, given the wide variety of ways the offence can be committed?
  • What weight should be given to the offender's guilty plea, history of mental illness, non-compliance with medication, and the domestic violence context?

Decision

O'Brien AM DCJ assessed the objective seriousness of the offending as significant. The killing was deliberate and involved premeditated concealment: the offender lied to multiple people, returned to the scene twice, cleaned the area to remove evidence, and disposed of incriminating material. These facts bore on the gravity of the offence notwithstanding the partial defence.

The judge accepted, however, that the offender's bipolar affective disorder substantially impaired his capacity to control himself at the time of the killing. Critically, the judge considered the degree of mental impairment at a level beyond that which was strictly necessary to establish the partial defence, treating it as a further mitigating factor that reduced the offender's moral culpability. The offender had a long history of mental illness and a history of non-compliance with medication, which were relevant to both the commission of the offence and the prospects of rehabilitation.

On the use of comparable cases, the judge acknowledged that manslaughter encompasses a wide range of conduct and correspondingly wide sentencing ranges. Sentencing statistics were noted to be of very limited assistance, consistent with the Court of Criminal Appeal's warnings in R v Wood and R v Vongsouvanh that such statistics can be "unhelpful and even dangerous." The appropriate approach was consistency in the application of legal principles, with the sentence ultimately tailored to the individual circumstances.

Before applying a 25% discount for the utilitarian value of the guilty plea, the judge assessed an appropriate total term at 12 years imprisonment. After the discount, the total term became 9 years, with a non-parole period of 6 years.

Orders Made

  • The offender was convicted of manslaughter.
  • Sentenced to imprisonment comprising a non-parole period of 6 years and a total term of 9 years, commencing 19 February 2019.
  • Eligible for release on parole on 18 February 2025.
  • Sentence expires 18 February 2028.

Key Takeaways

  • Where a partial defence of substantial impairment by abnormality of mind is established, the degree of mental impairment may operate as a mitigating factor beyond merely reducing murder to manslaughter, further lowering the offender's assessed moral culpability.
  • Sentencing for manslaughter by substantial impairment requires individualised analysis: the District Court confirmed the wide range of manslaughter offending means comparable cases serve only as a rough yardstick, and sentencing statistics were treated as of negligible assistance.
  • A long history of mental illness combined with a documented pattern of non-compliance with medication is a relevant consideration both in explaining the circumstances of the offence and in assessing future risk and rehabilitation prospects.
  • The "instinctive synthesis" method governs the ultimate sentencing exercise: after identifying all relevant factors, the sentencing judge makes a value judgment as to an appropriate outcome, and no single correct sentence exists.
  • A 25% discount for the utilitarian value of a guilty plea applied in this case, reducing a pre-discount assessment of 12 years to a total term of 9 years imprisonment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(b), 23A, 24
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Alexander Freeburn v The Queen (No 2) [2020] VSCA 176
- Aslan v R [2014] NSWCCA 114
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- DPP v Yucel [2019] VSCA 53
- Hili v The Queen (2010) 242 CLR 520
- R v Blacklidge (unrep, 12/12/95, NSWCCA)
- R v Dawes [2004] NSWCCA 363
- R v Green [1999] NSWCCA 97
- R v MD (2005) 156 A Crim R 372
- R v Tepania [2018] NSWCCA 247
- R v Vongsouvanh [2004] NSWCCA 158
- R v Warwick (No 94) [2020] NSWSC 1168
- R v Wood [2014] NSWCCA 184
- Veen v The Queen (No 2) (1988) 164 CLR 465