Hurd v The Queen [1988] TASSC 54

Hurd v The Queen [1988] TASSC 54 - TASSC 1988 case summary — Zoe

[74]

"Are you able to say, Doctor Kerr, what of those factors was the primary cause for the loss of self control or the inability to control?.... I think undoubtedly the brain damage, which was quite significant and confirmed on psychological testing, had been present for a long time and it's the brain damage that's responsible for the paranoia, the diminished sense of being able to control yourself and the irritability.

The paranoia, did that have any relationship to the brain damage? .... Yes, the paranoia is really a consequence of the brain damage.

And did the paranoia have any relationship to the carrying of the rifle?.... I think so. I think the paranoia and the brain damage had been present for several years and I think he had felt for quite a few years that he was at risk in a city situation or something could happen to him in which he would have to defend himself.

Doctor Kerr, was Mr. Hurd at that time able to weigh the potential advantages and disadvantages of his behaviour when he committed the offences? .... Well, to some extent I think he was but I think he became overwhelmed by his feeling that he was in mortal danger and the moment had finally come when they had come to get him, sort of thing.

Are you able to say what influenced him to go armed in public on that day? . . . . I think it was a habit that had been established for some years and he felt that he was at risk that if anything happened to his car or if some one took a fancy to having a go at him.

In your opinion, was he able to control his behaviour on the day he committed the offences?.... His behaviour then wasn't completely automatic, it wasn't completely out of control and there was a degree of control in as much as he didn't try, as far as I know, to kill a person. He tried to scare the person and he didn't fire the total magazine or anything like that. There was a sense of restraint present, there was some modification of his behaviour that he could still accept.

Are you able to pass an opinion as to the extent of that self control?....Well, as I say, he wasn't totally out of control and yet he had no ability at that time to assess the situation in sensible or practical terms.

Doctor, are you able to pass an opinion now as to the likelihood of this type of incident recurring?.... I think it's highly unlikely that he would ever behave in this way again, as long as he refrains from the use of alcohol or drugs.

Are you satisfied that he has remained free of those two things you mention since treatment? .... Yes, I am satisfied that he has.

Doctor Kerr, from your knowledge of Hurd, are you able to pass an opinion as to the effect on the prisoner of a term of actual imprisonment? .... I don't think it would make any difference to his subsequent way of conducting himself. I think he is completely convinced on the need for abstinence. I don't think there would be anything to gain by imprisonment."

[77]

"'It is well established that when a trial judge turns to the task of passing sentence upon an offender convicted by a jury, he is obliged to take "his own view of the facts and to decide how serious the crime is that has been committed, and how severely or leniently he should deal with the offender". See R. v. Harris, [1961] VicRp 36; [1961] V.R. 236. But he must not act upon a view of the facts that is inconsistent with the verdict of the jury. On a plea of guilty a sentencing judge is precluded from passing sentence on any basis inconsistent with the conclusion that the offender is legally responsible for the crime to which he has pleaded guilty.

'How, then, is a trial judge to sentence an offender who adduces evidence in support of a plea in mitigation to the effect that he was mentally ill at the time of the commission of the offence?

'In sentencing generally it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other. But in the case of an offender suffering from a mental disorder or abnormality general deterrence is a factor which should often be given very little weight. (Cf. Sentencing the Mentally Disturbed Offender by D.A. Thomas [1965] Crim. L.R. 685. Reference may also be made to an article by Dr. Glanville Williams in [1963] Crim.L.R. 730, at p.742, although in any reference to practices in other jurisdictions the sentencing alternatives available must be kept in mind. See also and cf. R. v. Gascoigne, [1964] Qd.R. 539; R. v. Kocan, [1966] 2 N.S.W.R. 565). General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. The mental condition of an offender may be taken into account when passing sentence, but whether the evidence establishes legal insanity or mental illness stopping short of legal insanity, the question to be answered is whether the interests of society permit or the interests of the offender require that the sentence to be passed be reduced from what would otherwise be appropriate rather than whether the offender's responsibility for the offence should be regarded as having been reduced.'"

[98]

65 The learned trial judge was entitled to form the view that the process of rehabilitating the applicant would be enhanced by serving part of a sentence of imprisonment and being made liable to serve the balance if he failed to abide by the conditions of its further execution being suspended. The applicant is not an unintelligent man, he is quite capable of appreciating the threatened punishment of the law and the wrongness of voluntarily putting himself, through abuse of alcohol, in a position where he might re-offend. He is capable of being held in check by the prospect of punishment (cf the remarks of Dixon J in R v Porter (supra) at p187). It may be that the regimen for controlling his abuse of alcohol would succeed without a partially suspended sentence of imprisonment, but in my view the learned trial judge was entitled to be dubious of that and, in the exercise of his discretion, to impose such a sentence partly to reinforce the applicant's resolve and partly to assist him in a practical way by removing the temptation to consume alcohol by his incarceration. However, I am not persuaded that a total sentence of two years' imprisonment, half of which was suspended, sufficiently recognised the diminished responsibility of the applicant. An actual sentence of that duration might well be appropriate in the case of an offender without the applicant's mental problems, even in the case of one who like him had no previous convictions. But any greater sentence might well, in my respectful view, be difficult to justify. A comparison of the objective circumstances of this case with those considered by the Court of Criminal Appeal in R v Solberg (4787) would tend to support this view. Having regard to the applicant's mental state and to his otherwise exemplary background I am persuaded that the sentences imposed, taken in the aggregate, were in all the circumstances manifestly excessive, notwithstanding the suspension of the execution of a large proportion of them, and that his Honour could not have given sufficient weight to the applicant's diminished responsibility for his actions.

At a glance

Court

Decision date

Before

Source

Judgment (100 paragraphs)

Hurd v The Queen [1988] TASSC 54 (28 October 1988)

Parties

Legislation Cited (1)

Cases Cited (3)