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Supreme Court 15 December 2021

R v Warren Scott (No 3)

[2021] NSWSC 1646

Assault & violenceHomicide
SENTENCING REMARKS ON SENTENCE MANSLAUGHTER SUBSTANTIAL IMPAIRMENT UNPROVOKED STABBING ATTACK ON VICTIM COMPLIANT WITH MEDICATION

Citation: R v Warren Scott (No 3) [2021] NSWSC 1646
Court: Supreme Court of New South Wales
Date: 15 December 2021
Judge: N Adams J

Background

The offender, a 39-year-old Aboriginal man diagnosed with schizophrenia, mild intellectual disability, and chronic alcoholism, was charged with the murder of a 49-year-old Aboriginal man. The Crown alleged the offender stabbed the deceased 31 times at the home of the offender's mother in Eden, NSW, on 4 April 2019. The two men had no history of conflict and had always been on good terms.

The offender did not contest the stabbing but argued that substantial impairment by abnormality of mind, under s 23A(1) of the Crimes Act 1900 (NSW), reduced his culpability from murder to manslaughter. The Crown's position was that excessive alcohol consumption, rather than the offender's mental illness, caused him to lose control.

The trial was conducted before Adams J sitting alone. In R v Warren Scott (No 2) [2021] NSWSC 1201, her Honour found the offender not guilty of murder but guilty of manslaughter on the basis of substantial impairment. These remarks on sentence followed.

  • What sentence was appropriate for manslaughter by substantial impairment, having regard to the objective seriousness of the offence?
  • How should moral culpability be assessed where the offender's mental illness interacted with voluntary, prolonged alcohol abuse and non-compliance with medication?
  • What weight should be given to the offender's personal circumstances, including his diagnoses, Bugmy considerations, prior offending, and the fact that the offence was committed while subject to an Intensive Correction Order (ICO)?
  • What discount applied in recognition of the offender's early offer to plead guilty to manslaughter?
  • How should the sentence be structured, including the commencement date, in light of time already served and totality principles?

Decision

Adams J assessed the objective seriousness of the offence as high. The offender carried out an unprovoked, sustained stabbing of 31 blows on a man with whom he had no dispute. The attack occurred in circumstances of extreme violence, with the deceased held captive for an extended period before police arrived, and included threats to watch the deceased "bleed out." Her Honour found these features placed the offence well above the middle of the range for manslaughter.

On moral culpability, her Honour accepted that the offender's schizophrenia and mild intellectual disability reduced his culpability to some degree. However, the reduction was limited by the offender's long history of refusing interventions for alcohol abuse, his non-compliance with antipsychotic medication, and the fact that his dangerous mental state at the time of the offence was substantially driven by his voluntary intoxication. The Crown's case that alcohol was the principal driver was consistent with the findings in Scott (No 2). Her Honour also noted that the offence was committed while the offender was on an ICO for a prior assault committed while intoxicated, which was an aggravating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW).

The offender's Aboriginal background and its relationship to his disadvantage were considered in accordance with Bugmy v The Queen (2013) 249 CLR 571, though this did not reduce the weight given to general deterrence in a case of this gravity. Some remorse was evident, though her Honour treated this with caution given the offender's mental state. Prospects of rehabilitation were described as guarded, given the entrenched nature of his conditions and his historical resistance to treatment.

Her Honour applied a 25% discount to reflect the offender's offer in the Local Court to plead guilty to manslaughter, noting that but for that offer, a sentence of 12 years would have been imposed. The sentence was backdated to 4 June 2019, rather than the date of arrest, to allow for some accumulation reflecting a separate custody period for the assault on his mother.

Orders Made

  • The offender was sentenced to 9 years imprisonment for manslaughter, commencing 4 June 2019 and expiring 3 June 2028.
  • Non-parole period of 6 years, with eligibility for parole on 3 June 2025.
  • The offender was to be warned, through his solicitor, of the operation of the Crimes (High Risk Offenders) Act 2006 (NSW) as a consequence of conviction for a serious violence offence.

Key Takeaways

  • Where an offender with schizophrenia voluntarily and persistently consumes alcohol in excess and refuses medication, a sentencing court may find that moral culpability is only partially reduced by mental illness, particularly where alcohol was found to be the dominant cause of the loss of control.
  • The Supreme Court confirmed that offending committed while subject to an ICO for prior alcohol-related violence is a statutory aggravating factor that increases the seriousness of the offence for sentencing purposes.
  • Applying Bugmy v The Queen, the court took the offender's Aboriginal background and associated disadvantage into account but did not treat this as diminishing the weight of general deterrence in a case of serious violent offending.
  • A 25% discount was applied for an early guilty plea offer made in the Local Court, reducing the sentence from 12 years to 9 years, in accordance with the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Totality principles informed the commencement date of the sentence: rather than backdating to the date of arrest, the court set a slightly later commencement date to achieve some accumulation with the period served for a related but distinct offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 23A (substantial impairment), 24 (manslaughter)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 22A, 25E, 44(2), 47(3)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Cases
- R v Warren Scott (No 2) [2021] NSWSC 1201
- R v Warren Scott [2021] NSWSC 1004
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Paterson v R [2021] NSWCCA 273
- R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
- R v Antaky [2007] NSWSC 1047
- R v Parker (No 2) [2016] NSWSC 813
- R v Tikaram [2016] NSWSC 1716
- R v Kenneth Noel White [2009] NSWSC 809
- R v Potts [2001] NSWSC 753