Catley v R

Personal circumstances and background to offences 8The applicant was 27 at the time of the offences. He has a brief criminal history, the most serious offence being assault occasioning actual bodily harm. 9The applicant and his mother (the deceased) had what was described by the sentencing judge as a "difficult history". She was unable to properly look after him when he was young and he spent his first years being cared for by the deceased and her mother, Mrs Catley. From the age of 5 or 6 he lived from time to time with Mrs Catley. 10The deceased was sent to prison when the applicant was 10 years old and he continued living with Mrs Catley or with an aunt throughout this period. The applicant remained in contact with the deceased whilst she was in prison. 11The applicant began using cannabis at about the age of 15. He began exhibiting signs of depression at that time and is reported to have once attempted to commit suicide. 12After the deceased was released from custody the applicant would visit her at her home and there were periods when he would stay with his partners in the house. He repeatedly expressed dislike for the deceased's cats. The relationship was strained and they would often fight after the applicant had been drinking to the point of physical violence. On one occasion the deceased expressed concern to a neighbour that the applicant might kill her after he had been drinking.

The offences 13The offences occurred in the early hours of Friday 16 October 2011. The deceased had lunch with her mother the day before and met the applicant at her house later in the afternoon. It is not clear how much alcohol was consumed, but it was described as a substantial amount by the sentencing judge. 14An argument broke out in the early hours. After physically beating the deceased about the head and various parts of her body the applicant stabbed her a number of times. Two of the wounds were serious enough to be fatal in their own right. She sustained a multitude of other injuries as well. 15The applicant killed the deceased's cats by slashing their throats with a knife.

The aftermath 16The applicant alerted his neighbours at about 4am and was arrested shortly thereafter. He insisted that he was drunk and so the police deferred interviewing him. The sentencing judge found that although the applicant was intoxicated "and had probably had a good deal to drink, he was in control of his faculties. He acted purposefully in raising the neighbours and in dealing with the police" (R/S [15]). 17The applicant said various things to the police before being taken to the police station. He said that he had killed his mother; that they had had a fight and an argument; that there was no justification for what he had done; that he had even killed her cats; and "how low can you go". He also made specific comments about the stabbing. 18The applicant was received into Cessnock Correctional Centre on 17 October, where he was described as being highly intoxicated, upset and in a state of disbelief. He was interviewed by a psychiatrist from Justice Health on 20 October and claimed to have no memory of the events in question. He said he had been drinking before meeting the deceased and then continued to drink whilst at her house. His next memory was waking up to find the deceased dead and a dead cat on his lap. He could not explain what had happened. 19He gave to the psychiatrist a history of depression and hearing voices. He reported that he had heard voices in his head in the 18 months prior to the offences. The voices argued with each other and he drank to shut them up. He was diagnosed with first onset psychosis and prescribed anti-psychotic medication.

The medical evidence 20Three forensic psychiatrists gave evidence at the trial. 21The Crown called Dr Stephen Allnutt. He did not support the defence of mental illness but suggested that on balance "one could conclude that at the material time, to some degree he was experiencing an underlying condition with an abnormality of mind that could be depression, plus some low grade psychotic symptoms or psychotic like symptoms..." (T331.47). 22There was evidence of depression both before and after the offences derived from GP notes and a prescription for Zoloft. The evidence of psychosis was more dependent on self-reporting. 23The applicant called Dr Richard Furst. He supported the defence of mental illness on the basis that the applicant was suffering from a schizo-affective disorder. He accepted at trial that this also meant that the defence of substantial impairment was available (T356.18). 24Putting aside the question of psychosis, Dr Furst said the level of distress and depression that the applicant appeared to have would probably support a defence of substantial impairment. But he said this was difficult to say for certain and "clearly the account was that he was psychotic" (T356.44). 25Dr Furst noted that the applicant did not respond adequately to his medication in custody and that this was a mark of the severity of his illness (T350.36). 26The applicant also called Dr Bruce Westmore. He was of the opinion that, on balance, the applicant was psychotic at the time of the homicide. This could have been precipitated or aggravated by drug or alcohol consumption but there was still an underlying psychosis. This opinion was based on the fact that the applicant had psychotic symptoms after being admitted and that he reported drinking in order to supress or repress voices in his head. (T382-383) 27Dr Westmore did not have enough exposure to the applicant in order to make a definitive diagnosis but concluded that he suffered a psychotic illness of some type (T384.9). The predominant symptoms were of a psychotic type rather than of a depressed type. (T386.15).

Findings on sentence 28The jury was instructed that if there was a reasonable doubt about the specific intent for murder on account of the applicant's intoxication they were to consider manslaughter by an unlawful and dangerous act. They were also instructed that if they had a reasonable doubt about the specific intent (to cause severe pain) in relation to the animal cruelty offences they were to find the applicant not guilty of those charges. 29The sentencing judge reasoned that since the jury found the applicant guilty of the animal cruelty offences, they must have been satisfied of the requisite mental element for murder. That is, the jury must have been satisfied beyond reasonable doubt that the applicant's intoxication did not preclude him forming the intent for the animal cruelty offences and so they must have found likewise in relation to the intent to cause grievous bodily harm in respect of the deceased. 30It followed from this that the jury did not consider manslaughter by unlawful and dangerous act but instead found that the offence of murder was reduced to manslaughter because when the applicant committed the act causing death he was suffering from an abnormality of mind that substantially impaired his capacity to understand events, or judge whether his actions were right or wrong, or to control himself. (R/S [17]) 31His Honour was wary of the applicant's account of suffering from psychosis, in part due to the fact that a prison informer gave evidence that the applicant expressed an intention to exaggerate when speaking to psychiatrists. This was accepted on sentence. Furthermore, an account emerged from the applicant four months after the events about the deceased having supplied him with ice (methylamphetamine) and injecting him with it. This account subsequently changed to the applicant injecting himself. His Honour doubted the applicant's claim to have taken ice on the night. 32His Honour accepted the evidence of Dr Allnutt that there was no significant history of psychosis before the events leading to the death of the deceased. 33His Honour also accepted Dr Allnutt's evidence that the applicant was suffering from an abnormality of mind arising from an underlying condition due to his depression before and after he killed the deceased, as well as some paranoid-type symptoms and perceptual experiences which could be of a psychotic nature, bearing in mind his family history of mental illness, and possibly the effect on him of drugs. (R/S [31]). He doubted that "any psychosis the offender has suffered or continues to suffer played a very great part in the commission of the offence" (R/S [37]). 34Because of the things he said before he was taken to the police station, such as that he had killed his mother and there was no justification for what he had done, the judge did not doubt that the applicant was able to judge the wrongfulness of his acts, or understand what he had done. This led to the conclusion that the applicant suffered from a substantial impairment of his capacity to control himself. 35His Honour found that the applicant's anger arose after he had had too much to drink, that it arose out of his hatred of the deceased and her cats, and that he intended to kill them all. (R/S [33]). 36The first three grounds of appeal are concerned, in turn, with paragraphs [37]-[39] of the remarks on sentence. Before turning to them it is worth observing that they were preceded by his Honour's reference to general principles concerning sentencing of an offender with a mental illness or disability: "Mental illness suffered by an offender may be taken into account on sentence in a number of ways. First, where the illness contributes to the offence, the offender may be considered less culpable and the offence may therefore attract a lower sentence than it otherwise would. It may render the offender inappropriate as a vehicle for general deterrence. And the fact that the offender will continue to have the illness may make the sentence weigh more heavily."

Ground 1 - His Honour erred when assessing the applicant's moral culpability for the manslaughter offence by failing to take into account his mental condition on the basis that a reduction of his culpability had already been taken into account in relation to this by reason of him being found guilty of manslaughter rather than murder 37This ground is concerned with the following paragraph from the remarks on sentence: "[37] ... I do not think that any psychosis the offender has suffered or continues to suffer played a very great part in the commission of the offence. To the extent that it did, the concomitant reduction in his culpability has already been taken into account, because instead of being found guilty of murder, as he would have been, he has been found guilty of manslaughter, and manslaughter carries a lower range of sentences." 38The applicant accepted that the offence of murder was reduced to manslaughter because of substantial impairment, but submitted that it was still necessary to have regard to the nature and extent of that impairment when assessing the criminality of the offence of manslaughter. 39It was conceded that the findings of exaggerated self-reporting relating to hearing voices and doubts about taking ice on the night were open to his Honour. However, it is not apparent that the report the applicant made to the psychiatrist from Justice Health about hearing voices and the subsequent diagnosis of first onset psychosis, prior to any contact with the prison informer, was taken into account. 40It was submitted that in considering the way in which the applicant was impaired, his Honour appeared to have limited his consideration to psychosis, and disregarded the effect of depression. He did not refer to Dr Furst's evidence that the applicant's impairment based solely on his depression would have been significant or to Dr Allnutt's evidence in relation to his depression. 41Reliance was placed upon R v Antaky [2007] NSWSC 1047 at [35] where R S Hulme J said in relation to substantial impairment: "Some impairment may be gross, some may only just fall within the description of 'substantial' so as to warrant the reduction. The presence and relative weight of other factors has also to be taken into account". 42Reference was also made to R v Keceski (Court of Criminal Appeal (NSW), 10 August 1993, unrep) where there was a verdict of manslaughter on the basis of substantial impairment. Mahoney JA observed that, after it was accepted that the offender's mental responsibility was substantially impaired, "[t]hat leaves the determination of one of the matters relevant to sentencing, namely, the extent to which what he did was really affected by his mental condition, granted always that one must start from the basis that his mental responsibility was 'substantially impaired'." 43In oral submissions, counsel for the applicant conceded that for this ground to succeed it was necessary to make good the contention that the evidence disclosed an impairment significantly beyond what was required to make out the partial defence of substantial impairment. Counsel went further than this and submitted that it is always relevant to look at the degree of impairment, as it goes both towards objective seriousness of an offence and to the subjective case of an offender. 44Counsel was pressed repeatedly with the question as to what finding ought to have been made if the judge had given any further consideration to the evidence, particularly in relation to the applicant's depression. Ultimately it was submitted that "it should have been reflected more in the sentence" and "the failure to consider its significance ... is reflected in an excessive sentence". (7.5.14 at T6.40) 45The sentencing judge was wary of the applicant's account of suffering from psychosis and this was clearly open to his Honour. It was also open to his Honour to find that, to the extent that the offender did suffer from any psychosis, it played little part in the commission of the offence. 46The applicant's submission that his Honour disregarded the effect of depression on the applicant's impairment cannot be accepted. His Honour clearly indicated that the verdict followed from an acceptance of the offender's depression, as well as some paranoid-type symptoms and perceptual experiences that could be of a psychotic nature. 47These findings do not disclose an impairment that went significantly beyond what was required for a finding of substantial impairment. This ground fails.

Ground 2 - His Honour erred by failing to take into account the diminished need for general deterrence on the basis that reduction of his culpability had already been taken into account because the offence of manslaughter attracted a lower sentence than murder 48This ground is concerned with the next paragraph from the remarks on sentence: "[38] To the extent that it is therefore inappropriate to impose a generally deterrent sentence on the offender, that too, has already been taken into account because his offence attracts a lower sentence". 49The applicant submitted that it was not relevant to the consideration of general deterrence that the applicant was convicted of manslaughter on the basis of substantial impairment. The central question was whether he was the appropriate vehicle to deter others in the circumstances of this offence. 50In addition, this was not a case where the applicant's mental illness increased the need for the protection of society. No finding was made to that effect. 51The Crown submitted that his Honour referred to the fact that mental illness may lessen the need for general deterrence and that this was encapsulated in sentencing for manslaughter instead of murder. 52The expression of this ground of appeal assumes that the judge was required to take into account "the diminished need for general deterrence". But, a mental illness or disability does not automatically lead to a reduction in the weight to be given to general deterrence. The Crown submissions included reference to some well-known decisions of this Court but it is convenient to adopt the encapsulation of the principles conveniently provided by Simpson J in Aslan v R [2014] NSWCCA 114: [33] This Court has frequently had to grapple with the effect on sentencing (especially with respect to serious or violent crimes) of mental illness, intellectual handicap or other mental or emotional impairment or disability. The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution. Over the years, the applicable principles have evolved. They were most recently re-stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. They are as follows: "[Principle 1] Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence ... [Principle 2] It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed ... [Principle 3] It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced ... [Principle 4] It may reduce or eliminate the significance of specific deterrence ... [Principle 5] Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence ... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public ..." (internal citations omitted, italics added) [34] It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for. [35] A central question (but not the only question) is whether the mental illness or other condition had a causative role to play in the commission of the offence or offences for which the offender is to be sentenced. Counsel who appeared for the applicant accepted that this was the principal issue in this case. If it is concluded that there was a causal connection, then the offender's moral culpability may be reduced (see principle 1). That connection may also warrant lesser attention being paid to the need for the sentence to reflect considerations of general deterrence (principle 2). 53I have reviewed a significant number of cases in this Court over the past 25 years or so that have considered sentencing for substantial impairment manslaughter and it has been consistently held that what Simpson J described as "principle 2" applies. See, for example, R v Troja (Court of Criminal Appeal (NSW), 16 July 1991, unrep); R v Chayna (Court of Criminal Appeal (NSW), 8 June 1993, unrep); R v Barton (Court of Criminal Appeal (NSW), 28 July 1995, unrep); R v Cooper (Court of Criminal Appeal (NSW), 24 February 1998, unrep); Heatley v R [2008] NSWCCA 226; Pitt v R [2014] NSWCCA 70 at [53]-[56] (Simpson J). It follows that the sentencing judge was in error if what he said at [38] of the remarks on sentence must be interpreted as meaning that the mental ill-health of an offender standing for sentence for substantial impairment manslaughter is never relevant to the weight to be given to general deterrence. 54The better view, in my opinion, is that what his Honour said must be seen in context. It is a short paragraph (in fact a single sentence) appearing within a fairly extensive survey of the evidence relevant to sentence which was dominated by a consideration of the applicant's mental condition. His Honour found, in effect, that he could not accept that the applicant's condition was as severe as described by Drs Furst and Westmore. I interpret what his Honour found as being to the effect that the condition was sufficient to persuade the jury that the partial defence was made out and if it was worse than that it was barely so. In these circumstances, his Honour was not required to find that the applicant was an inappropriate vehicle for general deterrence and thereby give less weight to it. I would not uphold this ground.

Ground 3 - His Honour erred by not taking into account on sentence the fact that a custodial sentence would weigh more heavily on the applicant than a normal offender because of his mental illness 55This ground is based upon the following paragraph of the remarks on sentence: "[39] I accept the possibility that because of his illness the offender may find his life more difficult to manage, whether he is serving a sentence or not. He will need to subject himself to treatment. He will need to seek and follow advice. He will need to take medicine. But there is no reason to suppose that the advice he needs will not always be available to him or that he will be denied any of the opportunities for work and rehabilitation ordinarily offered to those in custody." 56The applicant acknowledged this passage but submitted that the fact that advice, treatment and work opportunities would not be denied to the applicant in custody was not determinative of the matter. It was submitted that the fact that he continued to suffer from a psychotic illness, needed treatment and may find life more difficult in custody than an offender who is not mentally ill was a relevant consideration and should have been taken into account. 57The Crown submitted that, despite being in custody for more than two years, no evidence was advanced on behalf of the applicant that he had suffered any particular difficulties arising out of his mental illness. 58As is apparent from the summary of principles in R v Aslan quoted earlier, a finding that custody will weigh more heavily on an offender does not flow automatically from a finding of mental illness. The judge was clearly aware of the potential significance of this factor, considered it and determined that it did not arise. 59There was nothing in the applicant's submissions that indicated how the applicant's mental condition would make his time in custody more onerous than for an inmate unaffected by such a condition. The absence of evidence on the subject perhaps explains why the experienced counsel who appeared for the applicant in the court below made no mention of this issue. This ground is not made out.

Ground 4 - His Honour erred by failing to take into account the applicant's mental condition in relation to the offences of killing an animal with intent of inflicting severe pain. 60The applicant submitted that his Honour failed to take into account the applicant's mental state in sentencing for these offences. In particular, moderation was called for in respect of the applicant's moral culpability. 61The Crown submitted that the judge referred generally to principles relating to the sentencing of offenders with a mental condition and then discussed them specifically in relation to the manslaughter offence. Although he did not relate them specifically to the animal cruelty offences, it was implicit that he took the principles into account in relation to them as well. 62I am doubtful about the last of those submissions. In applying the principles in sentencing for the manslaughter offence a relevant factor was the reduction of liability from murder on account of the applicant's mental condition. But that had no role to play in the application of the principles to the animal cruelty offences. 63The sentencing remarks do not make any specific mention of the principles in relation to those offences. There are two possible reasons: his Honour failed to consider them in that context or he failed to mention that he had considered them. Because of his Honour's stated awareness of them generally, I think it is most unlikely that the judge simply forget about them in his assessment of the sentences for those offences. It is, again, notable that counsel who appeared for the applicant made no submission at all about these offences. In the end, the real question is whether the sentences are manifestly excessive, a matter to be considered under the next ground. I would not uphold this ground.

(a) The individual sentences for the manslaughter and the offence of killing an animal with intent of inflicting severe pain are manifestly excessive

(b) The extent of accumulation for the offences of killing an animal with intent of inflicting severe pain is manifestly excessive. 64The applicant relied on grounds 1-3 in support of the contention that a lesser sentence is warranted for the offence of manslaughter, and that the sentence is manifestly excessive. 65The maximum penalty for manslaughter is 25 years imprisonment. Taking into account the discount awarded for the applicant's late offer to plead guilty to manslaughter on the basis of substantial impairment, it was submitted that a sentence 11 years with a non-parole component of 8 years was substantial. It was at the top of the range of sentences recorded by the Judicial Commission. 66The judge found that the offence of manslaughter, and the animal cruelty offences, were "very serious ones of their kind". That was a finding that was well open to him, particularly having regard to his finding that there was an intention to kill (as opposed to inflicting grievous bodily harm) and that the reason for the finding of substantial impairment was the applicant's inability control himself. In other words, he was possessed of the capacity to understand events and to judge whether his actions were right or wrong. 67The judge found that the applicant was "very sorry for what he [had] done" but that the remorse "may last only until the next time he loses his temper and becomes violent". His prospects of rehabilitation were judged as "not high", given that they were seen to be dependent on his ability to master alcohol and his bad temper. 68It was submitted by the applicant that his disadvantaged background should be given full weight: Bugmy v The Queen [2013] HCA 37; 249 CLR 571. It was found that he had a "modest" record and that he had been a useful member of society with regular gainful employment. 69Reference was made by the applicant to Judicial Commission sentencing statistics. The limited use to which statistics can be put has been regularly commented upon: see, for example, Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [48]-[49]. In this case, although the sentence falls towards the upper range of those recorded, it cannot be said to be manifestly excessive. 70Ground 4 was said to support the contention that lesser sentences were warranted for the offences of killing an animal with intent of inflicting severe pain. I am not prepared to accept that a sentence of 2 years, against a maximum penalty of 5 years, is manifestly excessive for offences found to be very serious examples of their kind. This is so even having regard to such subjective matters, including the applicant's mental condition, that he could call in aid in mitigation. 71In relation to the level of accumulation of the manslaughter sentence upon the sentences for the animal cruelty offences, it cannot be ignored that the judge ordered that the two sentences for the latter be served concurrently. The practical effect is that the applicant will serve only one year in respect of those two offences. The Crown's submission that they reflected a separate element of criminality should be accepted. A degree of accumulation was called for and 1 year was not excessive. There is no merit in this point.

Orders 72I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed.

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