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11
Court of Criminal Appeal 17 May 2023

Camilleri v R

[2023] NSWCCA 106

Also reported as (2023) 308 A Crim R 52
Homicide
CRIMINAL LAW SENTENCING MANSLAUGHTER HORRENDOUS KILLING OF MOTHER DECAPITATION SUBSTANTIALLY IMPAIRED OFFENDER

Citation: Camilleri v R [2023] NSWCCA 106
Court: NSW Court of Criminal Appeal
Date: 17 May 2023
Judge(s): Adamson JA; Hamill J; Cavanagh J

Background

The appellant was convicted of manslaughter following the killing of her mother in circumstances the sentencing judge described as one of extraordinary viciousness and brutality, involving decapitation. She was originally charged with murder but the jury returned a manslaughter verdict on the basis that, at the time of the killing, she was substantially impaired by an abnormality of mind that diminished her capacity to control herself, reducing her liability under s 23A of the Crimes Act 1900 (NSW).

The sentencing judge imposed a term of 21 years and 7 months imprisonment with a non-parole period of 16 years and 2 months. That sentence incorporated a 10% discount for the utilitarian value of the appellant's offer to plead guilty to manslaughter.

The appellant sought leave to appeal on three grounds: that the sentencing judge erred in assessing the objective gravity of the offence, that the judge erred in declining to allow a further reduction for facilitating the administration of justice, and that the sentence was manifestly excessive.

  • Whether a sentencing judge is required, when sentencing for s 23A manslaughter, to consider the offender's mental and cognitive impairments as relevant to the objective seriousness of the offence, not merely as a subjective mitigating factor.
  • Whether, in doing so, a sentencing judge risks impermissible "double counting" where the same mental impairment already reduced the offender's criminal liability from murder to manslaughter.
  • Whether a discount for facilitating the administration of justice under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is an independent power from the statutory guilty plea discount regime in Part 3 Division 1A of the same Act, and whether s 25F constrains the exercise of that power.
  • Whether the sentence was manifestly excessive.

Decision

The court granted leave to appeal and, by majority (Hamill and Cavanagh JJ), allowed the appeal and resentenced the appellant. Adamson JA dissented and would have dismissed all grounds.

Ground 1: Objective gravity

Both Hamill J and Cavanagh J found error in the sentencing judge's assessment of objective gravity, though for partially different reasons. Hamill J held that, where manslaughter is based on substantial impairment, the offender's mental and cognitive impairments are relevant to objective seriousness because the impairment is effectively a constituent element of the offence. His Honour also found the sentencing judge erred by discounting the significance of the attack's spontaneous character on the basis that it was sustained, when expert evidence established that the appellant had lost control throughout the entire episode. Cavanagh J agreed that the impact of mental and cognitive impairment on the nature of the offending (including whether it was planned and its duration) was a relevant sentencing factor, and that considering it was not precluded by double-counting concerns. However, Cavanagh J held that the sentencing judge's assessment of the reduction in moral culpability arising from mental illness was itself within the judge's discretion.

Adamson JA, in dissent, held that gravity of the crime is an objective matter, and that it was open to the sentencing judge not to reduce objective seriousness by reference to mental impairment in circumstances where the same impairment had already operated to reduce the applicant's criminal liability from murder to manslaughter. Her Honour concluded it was open to find the offence fell in the worst category of cases.

Ground 2: Facilitation of the administration of justice

The court divided on this ground. Hamill J upheld it, finding a clear distinction between the statutory guilty plea discount under Part 3 Division 1A and the court's broader discretionary power under s 22A to reduce a penalty for facilitating the administration of justice. His Honour found the sentencing judge erred by allowing s 25F to constrain the exercise of the s 22A power, which it does not govern. Adamson JA and Cavanagh J both rejected this ground, finding no error in the sentencing judge's approach and agreeing that s 25F does not apply to discounts assessed under s 22A. On the majority view, Hamill J's position prevailed as part of the resentencing exercise.

Ground 4: Manifest excess

Given the majority found error on Ground 1, the court proceeded to resentence. Adamson JA, who would have dismissed the appeal, held the original sentence was not manifestly excessive given the extreme seriousness of the offending, and that the sentencing judge had taken all relevant circumstances into account.

On resentencing, the majority imposed a term of 16 years and 6 months imprisonment with a non-parole period of 12 years.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence quashed.
  • The appellant resentenced to a non-parole period of 12 years commencing 20 July 2019 and expiring 19 July 2031, with a balance of term of 4 years and 6 months expiring 19 January 2036.
  • The appellant to be eligible for release to parole at the expiration of the non-parole period.
  • The appellant's legal representative directed to explain the implications of the Crimes (High Risk Offenders) Act 2006 (NSW) to the appellant.

Key Takeaways

  • For manslaughter based on substantial impairment under s 23A of the Crimes Act 1900 (NSW), a majority of the Court of Criminal Appeal held that the offender's mental and cognitive impairments are relevant not only to moral culpability but also to the assessment of objective seriousness, because the impairment is effectively a constituent element of that offence.
  • The court confirmed (per Hamill J) that, where a mental abnormality both reduces an offender's moral culpability and makes them a danger to society, the principle from Veen (No 2) prevents dangerousness from being used to impose a more severe sentence than would otherwise be warranted by the reduced culpability.
  • A significant point of division among the judges concerns double counting: Adamson JA (dissenting) held it was open to the sentencing judge to decline any further reduction in objective seriousness where the same mental impairment already operated to reduce liability from murder to manslaughter.
  • Section 22A of the Crimes (Sentencing Procedure) Act 1999, which allows a reduction in penalty for facilitating the administration of justice, is a distinct and independent power from the statutory guilty plea discount regime in Part 3 Division 1A, and s 25F does not constrain the exercise of the s 22A power. The majority endorsed this as an error by the sentencing judge, though only Hamill J upheld the ground.
  • Spontaneity of an attack, as a sentencing consideration, is not negated simply because the attack was sustained, where expert evidence establishes the offender lost control throughout the entirety of the episode.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind), s 24 (manslaughter)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22A, 23A, Part 3 Division 1A (ss 25D, 25E, 25F), 54A(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32
- Homicide Act 1957 (UK), s 2

Key Cases
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33
- Muldrock v The Queen (2011) 244 CLR 120