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Supreme Court 30 October 2023

R v Niguidula (Sentence)

[2023] NSWSC 1283

Homicide
CRIME SENTENCE MURDER GUILTY VERDICT BY JURY STABBED ONCE TO THE CHEST WITH A KNIFE DECEASED HAVING AN AFFAIR WITH OFFENDER

Citation: R v Niguidula [2023] NSWSC 1283
Court: Supreme Court of New South Wales
Date: 30 October 2023
Judge: Dhanji J

Background

The offender, a businesswoman who had migrated from the Philippines to the United States and operated an international market research company, was convicted by a jury of murdering her former partner and employee on 17 November 2019 in Sydney. The victim had been having an affair with the offender, but shortly before his death she discovered he was also involved with another woman. She stabbed him once in the chest with a knife, penetrating his heart, and he died very shortly afterwards.

The offender had pleaded not guilty to murder but guilty to manslaughter. The Crown did not accept that plea, and a trial ran from 17 May to 7 June 2023. At trial, the offender did not dispute that she caused the death, but contested whether she had the requisite intention for murder and, alternatively, raised the partial defence of substantial impairment by abnormality of mind. The jury rejected both contentions and returned a verdict of guilty of murder.

The offender had no prior criminal history in Australia, though there was evidence of violence towards her former husband during their marriage. Dhanji J was required to determine facts for sentencing purposes, constrained only by consistency with the jury's verdict.

  • Whether the offender intended to kill or to inflict grievous bodily harm, as required for a murder conviction (a question already resolved by the jury, but relevant to factual findings at sentence)
  • Whether the jury's rejection of the substantial impairment partial defence precluded the court from treating the offender's mental condition as a mitigating factor on sentence
  • Whether the offender's diagnosed borderline personality disorder constituted a "mental health impairment" capable of reducing her moral culpability for sentencing purposes
  • The weight to be given to expert psychiatric evidence that the offender's mental condition significantly contributed to her inability to control herself
  • How to balance the objective seriousness of the offence against the offender's personal circumstances, including her mental health, lack of criminal history, and the prospect of deportation following release

Decision

Dhanji J sentenced the offender on the basis that she acted with an intention to kill or inflict grievous bodily harm, consistently with the jury's verdict. The court found that the jury's rejection of the substantial impairment defence meant the offender could not be sentenced as though that impairment was so substantial as to warrant a manslaughter verdict. However, that finding did not preclude the court from treating the mental condition as a mitigating factor at the sentencing stage.

The court accepted expert psychiatric evidence that the offender suffered from borderline personality disorder, which constituted a relevant mental health impairment. Critically, the court found that this condition significantly contributed to her inability to control herself at the time of the offence. That finding reduced her moral culpability to a degree, though it did not displace the fundamental gravity of the murder.

Dhanji J noted the significant personal consequences already suffered by the offender: the loss of her established life and business, years spent in a foreign prison, and the virtual certainty of deportation on release. The court also considered her lack of prior criminal history in Australia, the character references tendered, and the courses completed in custody. These factors were weighed against the need to punish, denounce, deter, and protect the community, and to vindicate the dignity of the victim.

The court observed that murder carries a maximum of life imprisonment and a standard non-parole period of 20 years. Having regard to all factors, including the mental health impairment and the offender's personal circumstances, Dhanji J determined that the appropriate sentence was 16 years' imprisonment with a non-parole period of 12 years.

Orders Made

  • The offender was convicted of the murder of the deceased.
  • Sentenced to imprisonment for 16 years, commencing 12 December 2019, with a non-parole period of 12 years expiring 11 December 2031; the balance of term of 4 years expires 11 December 2035.
  • Convicted of assault occasioning actual bodily harm; pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), no further penalty was imposed for that offence.
  • The court noted the application of the Crimes (High Risk Offenders) Act 2006 (NSW) to the offender and directed her legal team to explain the significance of that Act to her.

Key Takeaways

  • A jury's rejection of the partial defence of substantial impairment does not prevent a sentencing court from treating an offender's mental condition as a mitigating factor at sentence; the two inquiries serve distinct purposes.
  • Borderline personality disorder can constitute a "mental health impairment" relevant to sentence under NSW law, consistent with the Court of Criminal Appeal's approach in Wornes v R [2022] NSWCCA 184.
  • Where expert evidence establishes that a mental condition significantly contributed to an offender's inability to control herself, that finding can reduce moral culpability even in a murder case, though the reduction operates within the constraints imposed by the jury's verdict.
  • The sentencing court must determine facts independently, subject only to the requirement that those facts are consistent with the jury's verdict; adverse matters must be proved beyond reasonable doubt, while mitigating matters are proved on the balance of probabilities.
  • Collateral consequences such as the near-certain deportation of a non-citizen following release are relevant to sentence in NSW, as confirmed in Afful v R [2021] NSWCCA 111 and Kristensen v R [2018] NSWCCA 189.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 3A, 10A, 22A, 30E(3)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)

Cases
- Afful v R [2021] NSWCCA 111
- Droudis v R (2020) 103 NSWLR 806; [2020] NSWCCA 322
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Kristensen v R [2018] NSWCCA 189
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- MDZ v Regina [2011] NSWCCA 243
- Wornes v R [2022] NSWCCA 184