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Supreme Court 31 May 2024

R v He

[2024] NSWSC 417

HomicideDrugs
CRIMINAL LAW GRAVITY OF OFFENCE INTENTION TO KILL DRUG INDUCED PSYCHOSIS PSYCHIATRISTS’ OPINIONS

Citation: R v He [2024] NSWSC 417
Court: Supreme Court of New South Wales
Date: 31 May 2024
Judge: Lonergan J

Background

The offender, a Chinese national in his early twenties, murdered his 19-year-old girlfriend in their shared Wolli Creek apartment on 27 June 2020. He attacked her with a hammer and two knives, stabbing her at least 75 times. He then attempted to take his own life by slashing his wrist and jumping from the fourth floor of the building, sustaining catastrophic injuries including a severe traumatic brain injury, spinal cord injury, and multiple fractures.

The offender remained in intensive care for weeks. While still hospitalised, he was arrested and charged with murder. A fitness-to-stand-trial inquiry was conducted in 2022, with Wilson J finding him fit to be tried despite his ongoing impairments. He entered a plea of guilty to murder on 7 October 2022.

The central disputed issue at sentencing was whether the offender had been experiencing drug-induced psychosis, caused by prolonged and heavy use of nitrous oxide, at the time of the killing. The resolution of that question had direct bearing on his moral culpability and, consequently, the length of his sentence.

  • Whether the offender was experiencing drug-induced psychosis at the time of the murder, as distinct from mere intoxication, and whether that condition materially contributed to the offending
  • Whether self-induced intoxication by nitrous oxide could be treated as a mitigating factor under the sentencing regime
  • How the findings on mental state affected the assessment of objective seriousness and moral culpability
  • The appropriate sentence, taking into account the 25% discount for the early guilty plea, the offender's physical injuries, lack of remorse, prospects of rehabilitation, and the applicable aggravating and mitigating factors

Decision

Drug-induced psychosis versus intoxication. Lonergan J accepted, on the balance of probabilities, that the offender had been suffering from transient drug-induced psychosis at the time of the murder, caused by prolonged heavy nitrous oxide abuse. This finding was supported by expert evidence from a psychiatrist (Dr Furst) and a pharmacologist (Professor Christie). The Crown argued that the offender was simply intoxicated at the time, which would be a non-mitigating factor under s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Court drew a distinction between acute intoxication and the psychotic state that can arise from sustained, heavy abuse of nitrous oxide beyond the period of acute intoxication.

Effect on culpability. The finding of drug-induced psychosis produced only a marginal reduction in the objective seriousness of the offence and a mild reduction in moral culpability. The attack was described as violent and merciless. The Court noted that the offender had no verified personal account of his nitrous oxide use before the Court, and that a version he gave to Dr Furst was assessed by that expert as a deliberate minimisation. The Court was careful not to overstate the mitigating effect of the mental condition in the context of such a grave offence.

Remorse, rehabilitation, and other factors. Lonergan J found no genuine remorse. The offender had feigned memory loss and, in recorded conversations with family, had been encouraged to deny responsibility. He maintained to others that he was not the killer. The Court found good prospects of rehabilitation could not be established. The offender's severe physical disabilities were taken into account as reducing the risk of reoffending, a statutory mitigating factor. The offence was found to be unplanned (a mitigating factor), and it occurred in the victim's home (an aggravating factor under s 21A(2)(eb)).

Sentence. Applying the 25% discount for the early guilty plea and balancing all the relevant factors, the Court sentenced the offender to 20 years' imprisonment, with a non-parole period of 13 years. Special circumstances were found, given the offender's serious self-inflicted physical injuries and traumatic brain injury, which justified a longer-than-standard ratio of parole to non-parole period.

Orders Made

  • The offender was convicted of the murder of the victim.
  • Total term of imprisonment: 20 years.
  • Non-parole period: 13 years, commencing 20 January 2021, expiring 19 January 2034.
  • Balance of term: 7 years, commencing 20 January 2034, expiring 19 January 2041.
  • Earliest eligible parole date: 19 January 2034.
  • The offender was informed of the operation of the Crimes (High Risk Offenders) Act 2006 (NSW).

Key Takeaways

  • Drug-induced psychosis arising from prolonged, heavy substance abuse is legally distinguishable from acute self-induced intoxication: the former may reduce moral culpability, while the latter is expressly excluded as a mitigating factor under s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • A finding of drug-induced psychosis does not automatically produce a significant sentencing reduction. The extent of any reduction depends on the specific facts, including the gravity of the offence and the degree to which the mental condition causally contributed to the offending.
  • Where an offender has actively feigned memory loss and encouraged others to deny responsibility on his behalf, a sentencing court may properly find that no genuine remorse exists and that prospects of rehabilitation are not established.
  • Special circumstances justifying an adjustment to the standard non-parole ratio can be found where an offender's serious self-inflicted physical injuries and traumatic brain injury will make a custodial sentence more burdensome than it would otherwise be.
  • Under the Crimes (High Risk Offenders) Act 2006 (NSW), the State retains the ability to seek continued supervision or detention of a sentenced murderer beyond the expiry of their sentence if the Supreme Court considers them to pose an unacceptable risk of committing a serious offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(c), 21A(2)(eb), 21A(3)(b), 21A(3)(f), 21A(3)(g), 21A(5AA)

Cases
- Aslan v R [2014] NSWCCA 114
- Cheung v R (2001) 209 CLR 1; [2001] HCA 67
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v He [2022] NSWSC 847 (fitness-to-stand-trial inquiry)
- R v Quinn (No. 3) [2016] NSWSC 1699
- R v Smith (1987) 44 SASR 587
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54