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Supreme Court 8 February 2001

R v Veech

[2001] NSWSC 68 revised - 21

HomicideFirearms & weapons

Citation: R v Veech [2001] NSWSC 68 revised 21/02/2001
Court: Supreme Court of NSW, Common Law Division (Criminal)
Date: 8 February 2001
Judge(s): Wood CJ at CL

Background

The prisoner was charged with the murder of the deceased, a former friend and associate who had been carrying out vehicle mechanical work at the prisoner's rented home in Toukley. The deceased had a documented history of mental illness, including bipolar disorder and frontal lobe syndrome, and was known to experience manic episodes involving verbal aggression. On the morning of 28 November 1999, following a confrontation at the side gate of the property, the prisoner armed himself with a .22 Browning rifle loaded with hollow-pointed rounds.

The prisoner fired four shots at the deceased. The first two struck the deceased while he faced his utility vehicle, and the second two were fired from close range into the deceased's body as he lay on the ground. Dr Oettle gave evidence that without those final two shots, the deceased would have had a reasonable chance of surviving the first two wounds with medical attention. After the shooting, the prisoner struck the prone body with the rifle butt.

The prisoner was acquitted of murder but convicted by the jury of manslaughter. The jury's verdict made plain that the prisoner was not found to have acted in lawful self-defence.

  • Whether the manslaughter verdict was returned on the basis of provocation or on the basis of an unlawful and dangerous act, and why that distinction matters for sentencing.
  • What weight to give to the circumstances of the offence, including the manner of the killing and the use of a firearm.
  • How to treat subjective factors, including the prisoner's age, background, drug use, and mental state.
  • How to calculate the head sentence and non-parole period, accounting for broken periods of pre-sentence custody.

Decision

Wood CJ at CL identified the distinction between provocation-based manslaughter and unlawful-dangerous-act manslaughter as significant for sentencing purposes, because provocation, if established, operates as a partial excuse that can reduce the moral culpability of the offender. His Honour examined the trial evidence carefully to determine which basis the jury had likely acted upon.

The court determined that, regardless of which precise basis underlay the verdict, the objective gravity of the offence was high. The prisoner had armed himself and pursued the deceased, firing the two fatal shots from close range into a man already incapacitated on the ground. That conduct, taken together with the post-shooting blow to the head and the prisoner's apparent state of mind as revealed by his words, indicated that the circumstances well exceeded a momentary loss of control.

On subjective matters, the court took into account the prisoner's age at the time of the offence, the effects of a prior motor vehicle accident, his use of cannabis, an observed depressive condition, and the absence of any prior criminal record. His Honour directed that Dr Westmore's psychiatric report accompany the sentencing remarks to the relevant correctional authorities, so that the prisoner's mental health could be appropriately managed during his sentence.

The court fixed a head sentence of six years and six months and set the non-parole period at three-quarters of that term, reflecting both the objective seriousness of the offence and the subjective factors in the prisoner's favour. The sentence was backdated to account for broken periods already served in custody, with a deduction of 136 days.

Orders Made

  • The prisoner sentenced to imprisonment for 6 years and 6 months, less 136 days, commencing 1 December 2000 and expiring 1 February 2007.
  • Non-parole period specified at 59 months, less 136 days, commencing 18 December 2000.
  • Earliest date eligible for release on parole: 25 June 2005 (subsequently varied under the slip rule to 4 July 2005).
  • Dr Westmore's psychiatric report directed to accompany the sentencing remarks to correctional authorities.

Key Takeaways

  • The Supreme Court treated the distinction between provocation-based manslaughter and unlawful-dangerous-act manslaughter as a material sentencing consideration, because provocation bears on an offender's degree of moral culpability.
  • Where a prisoner fires additional close-range shots into an already incapacitated victim, the objective gravity of a manslaughter offence is substantially elevated, even where the initial confrontation involved some element of perceived threat.
  • A non-parole period set at three-quarters of the head sentence was regarded as appropriate in circumstances where the court considered rehabilitation prospects to be present but the seriousness of the offence warranted a substantial custodial term.
  • Subjective mitigating factors, including youth, mental health conditions, absence of prior criminal history, and drug dependency, were weighed against the objective circumstances, rather than being treated as determinative.
  • Courts may direct psychiatric reports to accompany sentencing remarks to correctional authorities where an offender's ongoing mental health needs are identified during the sentencing process.

Legislation and Cases Referenced

Legislation:
- Mental Health Act (NSW), s 32 (referenced in relation to prior dealings with the deceased)

Cases:
No cases were cited in the portions of the judgment provided.