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Supreme Court 12 March 2021

R v Camilleri

[2021] NSWSC 221

Assault & violenceHomicide
CRIME SENTENCE SENTENCE AFTER TRIAL TRIAL FOR MURDER CRIME OF EXTREME VIOLENCE USE OF MULTIPLE WEAPONS

Citation: R v Camilleri [2021] NSWSC 221
Court: Supreme Court of New South Wales
Date: 12 March 2021
Judge(s): Wilson J

Background

The offender, a 25-year-old woman living with her mother in St Clair, was charged with the murder of her mother following events on the night of 20 July 2019. A jury found her not guilty of murder but guilty of manslaughter under s 23A of the Crimes Act 1900 (NSW), on the basis of substantial impairment by an abnormality of mind. The offender had multiple diagnosed conditions including autism spectrum disorder and an intellectual disability, and her mother was her sole carer.

The killing followed a day of escalating tension. The offender resented the presence of a young child at the home and had become increasingly agitated throughout the day. When her mother attempted to call an ambulance late that evening, the offender physically resisted, having previously expressed a strong fear of hospitalisation. A struggle ensued, after which the offender used multiple kitchen knives to inflict an extraordinarily large number of wounds on her mother, resulting in decapitation. A young child was also present in the home and sustained injuries.

The matter came before Wilson J for sentencing following the verdict. The Crown had rejected an offer to plead guilty to manslaughter before trial. That pre-trial offer became a significant issue in determining the appropriate sentence discount.

  • What sentence was appropriate for an offence of manslaughter of the utmost gravity, committed by an offender with significant mental health conditions and intellectual disability?
  • What weight should be given to the offender's disabilities as mitigating factors in circumstances where the offence was of extreme violence?
  • To what extent should the offender receive a discount on sentence to reflect her pre-trial offer to plead guilty to manslaughter, which the Crown rejected and which was ultimately vindicated by the jury's verdict?
  • Whether the substantial impairment finding under s 23A necessarily required a sentence substantially below the maximum available.

Decision

Wilson J described the killing as one of the most serious instances of manslaughter it was possible to conceive, invoking the High Court's remarks in Veen v R (No 2) about the outer reaches of criminal gravity. The facts, largely undisputed at trial, revealed a prolonged and ferocious attack involving at least 100 stab and incised wounds to the head and neck, decapitation, and grievous injuries to the hands of the deceased as she attempted to defend herself. The crime was committed in the victim's home and in the presence of a young child.

The court acknowledged the offender's significant mental health conditions and intellectual disability as mitigating factors, consistent with the substantial impairment verdict. However, Wilson J held that those conditions could not, in this instance, require a sentence substantially below the maximum. The need to protect the community, the extreme gravity of the offence, and the very great harm caused all pointed toward a stern sentence.

On the question of the pre-trial plea offer, the court addressed the principle that where a Crown rejects a plea offer that is later vindicated by the verdict, some discount should be afforded. The court accepted that some acknowledgment of the offered plea was warranted, though it was weighed against the overall severity of the offending and the other sentencing considerations.

The substantial impairment finding under s 23A, while reducing liability from murder to manslaughter, was confirmed not to require in all cases a penalty less than life imprisonment. The court drew on authorities examining how such provisions have historically operated, noting that mitigation flowing from mental abnormality must still be balanced against objective gravity and community protection.

Orders Made

  • The offender was sentenced to imprisonment for 21 years and 7 months, commencing 20 July 2019 and expiring 19 February 2041.
  • A non-parole period of 16 years and 2 months was set, expiring 19 September 2035.
  • The Registrar was directed to send all psychiatric and other health reports to the Governor of the prison in which the offender is detained.
  • The offender was warned that the Crimes (High Risk Offenders) Act 2006 (NSW) may apply to her upon release.

Key Takeaways

  • A substantial impairment verdict under s 23A of the Crimes Act 1900 (NSW) does not, in all cases, require a sentence substantially below the maximum available. The provision reduces liability from murder to manslaughter, but the sentencing court must still weigh objective gravity and community protection.

  • Where the Crown rejects a pre-trial offer to plead guilty to an offence that the jury ultimately returns a verdict on, the sentencing court may afford some discount to reflect that offer, even though the discount will be calibrated against all other sentencing factors.

  • Significant mental health conditions and intellectual disability remain mitigating factors at sentence, but their weight can be substantially diminished where the offending is of extreme gravity and the need for community protection is acute.

  • The Supreme Court applied Veen v R (No 2) to confirm that proportionality and community protection are primary considerations at the upper end of the sentencing range for violent offences, even where the offender's culpability is reduced by mental impairment.

  • An offender sentenced for manslaughter arising from substantial impairment may, upon release, be subject to the Crimes (High Risk Offenders) Act 2006 (NSW), and the sentencing court may give express notice of that possibility at the time of sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW)
- Homicide Act 1957 (UK), s 2 (historical comparator to s 23A)

Cases
- Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 205 A Crim R 1; [2010] NSWCCA 194
- R v Magro [2020] NSWCCA 25
- R v Oinonen [1999] NSWCCA 310
- R v Keceski (unreported, NSWCCA, 10 August 1993)