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Supreme Court 30 July 2021

R v Srsa

[2021] NSWSC 924

HomicideDomestic & family violence
SENTENCING MANSLAUGHTER SUBSTANTIAL IMPAIRMENT TRAUMATIC STRESS DISORDER MANSLAUGHTER SUBSTANTIAL IMPAIRMENT

Citation: R v Srsa [2021] NSWSC 924
Court: Supreme Court of New South Wales
Date: 30 July 2021
Judge: Ierace J

Background

The offender, a 50-year-old woman, pleaded guilty to the manslaughter of her partner of four to five years. The killing occurred on 10 October 2018 near their home in Blacktown. The plea was entered on the basis of manslaughter by substantial impairment under s 23A of the Crimes Act 1900 (NSW), which is a partial defence to murder that reduces the charge to manslaughter where an abnormality of mind substantially impairs a person's capacity to control their actions.

The day of the offence was marked by escalating conflict. The deceased had withdrawn money from the offender's bank account without her knowledge, and had written derogatory graffiti about her in the toilets of a local hotel and on furniture and walls at the home. The offender attended the hotel, was visibly distressed, and returned home to confront the deceased. After an argument, the offender's son told the deceased to leave. The offender then took a steak knife from the kitchen, followed the deceased along the street, and stabbed him once in the chest. He collapsed and died at the scene. Both the offender and the deceased were heavily intoxicated at the time.

The offender had a diagnosed history of complex post-traumatic stress disorder (PTSD), alcohol use disorder, and a background of being in abusive relationships. She returned to the home after the stabbing, called Triple Zero, and was arrested shortly after, at which point she had blood on her hands and was affected by alcohol.

  • What was the appropriate sentence for manslaughter by substantial impairment, having regard to the offender's mental health diagnoses and history of trauma?
  • Whether the offender had an intention to kill or to cause serious injury, given that she claimed no memory of the stabbing, and given the content of her call to emergency services.
  • Whether the deceased's conduct in the lead-up to the offence (false accusations of infidelity, withdrawing money, and writing derogatory graffiti) constituted provocation relevant to sentencing.
  • Whether the degree of the offender's mental impairment exceeded what was required to activate the partial defence of substantial impairment, and if so, to what extent this was relevant to mitigation.
  • Whether special circumstances existed to justify varying the standard statutory ratio between the non-parole period and the balance of the term of imprisonment.

Decision

Ierace J was satisfied that the offender intended to cause serious injury to the deceased rather than to kill him. Although the offender stated she could not remember the stabbing, his Honour drew on the broader circumstances, including that she struck a single blow and then left, to conclude that an intent to kill was not established beyond reasonable doubt. The Crown's reliance on the Triple Zero call to demonstrate an intent to kill was not accepted.

The offender's mental health history was central to the sentencing exercise. Her diagnoses of complex PTSD and alcohol use disorder, along with her history of abusive relationships, were found to have substantially impaired her capacity for self-control at the time of the offence. His Honour found that her impairment went beyond the minimum threshold required to activate the substantial impairment defence, and that this bore on the assessment of her moral culpability. However, the offender had pursued the deceased with the knife and re-engaged him in confrontation, which were aggravating features affecting the objective seriousness of the offence.

On the question of the deceased's conduct as a mitigating factor, Ierace J acknowledged the derogatory graffiti, the unauthorised withdrawal of money, and the repeated arguments as relevant context. These matters were considered in assessing the circumstances of the offence, though they did not constitute formal provocation in the legal sense.

Special circumstances were found on two grounds: the offender's need, upon release, to maintain her commitment to abstaining from excessive alcohol consumption and continuing treatment for her anxiety, both of which were central to the offending; and the fact that her ongoing anxiety made imprisonment harsher for her than it would be for others. A 25 per cent discount was applied to the head sentence to reflect the guilty plea.

Orders Made

  • The offender was sentenced to a term of imprisonment of 7 years and 10 months, commencing 10 October 2018 and expiring 9 August 2026.
  • A non-parole period of 5 years was imposed.
  • The offender became eligible for release to parole on 9 October 2023.

Key Takeaways

  • Where an offender's degree of mental impairment exceeds the minimum threshold required to activate the substantial impairment partial defence, this excess may operate as a mitigating factor going to moral culpability at sentencing, even though it does not further reduce the conviction.
  • An inability to recall committing the act does not automatically establish an absence of intent. Ierace J determined the offender's intent from the surrounding circumstances, refusing to infer an intention to kill solely from the content of a Triple Zero call.
  • The Supreme Court treated complex PTSD and alcohol use disorder, particularly when arising from a history of being in abusive relationships, as significant factors bearing on an offender's culpability in a domestic homicide context.
  • Deceased conduct, such as derogatory graffiti, financial misconduct, and repeated accusations, may be considered as contextual background in sentencing, without necessarily constituting legal provocation.
  • Special circumstances justifying a variation to the non-parole period ratio can be grounded both in the offender's rehabilitative needs upon release and in the fact that a diagnosed anxiety disorder makes the experience of custody more burdensome than it would otherwise be.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 23A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 4A, 5, 21A, 25, 30E, 44
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 4, 11

Cases:
- Catley v R [2014] NSWCCA 249
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Barbieri [2014] NSWSC 1808
- R v Cahill (No 4) [2018] NSWSC 1896
- R v Olbrich (1998) 45 NSWLR 538
- Tepania v The Queen (2018) 275 A Crim R 233; [2018] NSWCCA 247
- Ukropina v R [2016] NSWCCA 277
- Ward v The Queen (2006) 166 A Crim R 273; [2006] NSWCCA 321