R v AB

The facts and circumstances of the offence

1. What follows is largely drawn from the reasons of Adams J for finding the respondent not guilty of murder but guilty of manslaughter following the special hearing. To a large extent the relevant facts were undisputed.
2. The respondent had lived for some years in a de facto relationship with the victim in a small village called Mooral Creek, approximately 26 kilometres out of the town of Wingham, in country NSW. Together, the respondent and the victim had a daughter, who, at the time of the death of her mother in July 2010, was 7 years of age. Sometime before that date, the victim ended the relationship with the respondent. She and the daughter moved out of the house they had previously shared with the respondent, eventually settling in rented premises in Wingham. There were conflicts between the respondent and the victim. These involved the respondent's access to their daughter, and complaints made by the victim about the care given to her by the respondent during periods of access. There were conflicts over the division of property, and the respondent suspected the victim of infidelity. There was evidence that, after her departure, the respondent made threats to others to kill either the victim or their daughter. There was also evidence that the respondent had, at that time, been a heavy consumer of alcohol.
3. During the afternoon of 10 July 2010 (a Saturday) the respondent drove to the premises in Wingham by then occupied by the victim and their daughter. Both the victim and the daughter were present. The respondent was in possession of a rifle. He left the rifle in the car, and walked into the premises where he had a conversation (probably confrontational) with the victim. He retrieved the rifle from the car, and returned to the house and shot the victim five times. He then drove off.
4. He drove to his home in Mooral Creek. On arrival there, he rang the emergency number, 000. He had a lengthy conversation with the operator. He immediately told the operator: "Well, I just shot my missus." He gave his name and present location, and said that he had shot the victim in Wingham, giving the address. He said that he had shot her three times. The operator asked if he was "Okay" to which he replied: "Yeah, I am so far but I won't be when you get here." He repeated several times the barely veiled threat to kill himself. He told the operator that his daughter had been present at the time of the killing, and said that she had run down the road. During the course of the lengthy conversation the respondent made remarks (as recorded in the transcript) such as: "Well the situation was she made a cunt of me, so I shot her. Is that alright?"; "But what I'm trying to say to you is, listen, it was alright, while she was doing what she was doing but now it's fuckin' finished. Alright?"; "Now, everybody said to me, don't kill your missus because you've got a kid. Well, fuck her too, and I don't care whether you like it or you don't."; "She must be awful sick 'cause I put three bullets in her."; "Listen, she got three of the best bullets I ever seen in me life."; "Now, I don't really care. All I'm saying, she wasn't going to rob me no more."; "All right? The little one yes, I'm sorry for that but I done it. All right?"; "Well, because, you know what? They say they get the gold mine, you get the shaft. Like, I'm 64 year old … And it's not the best thing in the world to do, so fuck her. She - I'm going to end up in the, in the arse of the world. I've had three houses. She fucking robbed me of all of 'em."; "Yes, I did shoot her and I hope she's dead. I hope she fucking is … I hope she's fucking dead because she's not going to rob me no more. All right? … I got nothing left … I mean she's going to rob me of the house and I said, fuck you anyway, and I'm telling you the truth, fuck you anyway, so I went and shot her, you know?"; "Well, hang on, listen. Everybody said, don't shoot your woman while the kid's there … Well, I had no choice. I just walked in and went bang, bang, bang, and that's the end of you … I said, fuck it I'm going to do it anyway."; "So I done, look, it just doesn't matter what I say to you … The whole fact of is I've done it and I feel guilty."; "Look … understand this, I went with the intention of killing … I've been here fuckin' 6 months on my own and she's getting all these benefits and all this shit and I got fuck all … and I said fuck this, and she's a smart arse, you know?"; "I know shot her, and I thought the first one didn't kill her, so I give her a couple more."; "Yeah … I hope she's dead … because, you know, she wanted to rob me for half the house … and, if she died before me, I get nothing."
5. A few minutes after this conversation ended, the respondent again rang 000. This call was taken by a different operator. The respondent also told the second operator that he had shot his de facto. He said that he thought he had fired three or four times. He said: "All I'm saying to you is that I shot her and I hope she's dead."
6. The respondent then drove back to Wingham where he was arrested at about 5.20pm. He was interviewed by police. Much of what he said appears to have been inconsistent, but he never resiled from his admission that he had killed the victim. He also continued to make clear that his motivation had been resentment at the victim having left him and having made property and financial demands.
7. He did express some (minimal) concern that his daughter had been in the house at the time of the shooting. In addition to having said that he was sorry about "the little one", in answer to a question about what he thought when he saw his daughter at the house he answered: "I felt fucking horrible, alright."

The respondent's mental state at the time of the killing

1. The respondent was born in 1945. He was 64 years old at the time of the killing. In 2008 he was diagnosed as suffering from depression and having low self-esteem, and irrational fear. The depression stemmed from a serious injury sustained in 1994. The fear was due to his financial difficulties and back pain.
2. There was psychiatric evidence from four psychiatrists. There was little difference between them. The diagnosis was of adjustment disorder with depressed mood. Adjustment disorder is a reaction to stressors which exceeds the person's coping capacity, resulting in psychiatric symptoms which either significantly impair function or are greater than might be expected as a reaction to the particular stressor.
3. The respondent was also diagnosed with dementia (probably caused by long term hazardous alcohol consumption), cerebro vascular disease and possible Alzheimer's dementia.
4. It was on the basis of this evidence that Adams J found the s 23A defence to have been established.

The respondent's health and circumstances following the special hearing

1. The special hearing took place in October 2013, and Adams J delivered his findings on 26 November of that year.
2. As a forensic patient (from 3 December 2012, when he was found unfit to be tried), the respondent had been referred to and reviewed by the Tribunal. Available to Adams J was a determination of the Tribunal of 17 March 2014 and a report on which it had been based, the source of which appears to have been a clinical nurse consultant (Nurse Parsons). As at March 2014, the Tribunal recorded: "[The respondent] does have a degenerative brain disorder, namely dementia which is irreversible and has resulted in a decline in cognitive function which is continuing. … [The respondent's] degeneration brain disorder is irreversible and his cognitive impairment will continue to decline … there is no cure for dementia and there are no disease modifying agents available for [the respondent's] form of dementia. … He appeared physically frail, disinterested and non-communicative before the Tribunal. The opinion expressed by Ms Parsons is that as [the respondent] ages and his memory further declines he may require a more supported environment both for his physical and mental health. … The prognosis for dementia is for an ongoing decline in cognitive function …"
3. A Justice Health report dated 22 February 2014 recorded that the respondent had been assessed by Dr Sharon Reutens, a psychiatrist specialising in the treatment of older people. Dr Reutens recorded that the respondent had been reviewed on 4 February, when he was seated in a wheelchair. She commented, however, that his gait was normal, suggesting that he had some capacity to walk unaided. Dr Reutens' opinion was consistent with that of Nurse Parsons.
4. At about the same time, Nurse Parsons reported on her assessment of the respondent. Inter alia, she stated her belief that the respondent had little insight into his "illness symptomatology", although he was aware of his failing memory.
5. There was other medical evidence before Adams J, all to the same effect.
6. Adams J further recounted at [15] that amongst his other physical problems the respondent fell in November 2013 sustaining a right hip fracture which required surgery. His Honour noted that the respondent suffered from continuing severe pain from this injury and may require further surgery. The respondent could walk with the aid of a four wheel walker but needed strong analgesic medication.

Reasons of Adams J for nominating a limiting term of 7 years

1. Adams J briefly reviewed the circumstances of the killing of the victim, and the evidence of the respondent's mental state. It is only necessary to mention those observations and findings as are material to the grounds of the Director's appeal. The relevant passages are: "5 … [The respondent] made full and frank admissions to the police. Although he said, in effect, that he had no choice but to kill [the victim] because of her conduct towards him, he also expressed guilt and remorse. … 7 Were it not for [the respondent's] mental condition at the time of the offence, this would have been a very serious case of murder … … 16 … In short, [the respondent] has increasing dementia with severe physical problems which will not improve. He cannot lively independently. … 17 The most serious feature of [the respondent's] actions, of course, is his killing of [the victim] in circumstances which, but for his mental state at the time, would have constituted the crime of murder. There can be no doubt that, despite the damage to his powers of reason, self control and judgment he was well aware of the criminality of his actions. Accordingly, there is a significant degree of moral turpitude and criminal culpability involved for which it would have been just that, had he been convicted after trial, a substantial term of imprisonment should have been imposed. 19 It is relevant to consider that [the respondent] will find the prison environment considerably more difficult to cope with than the ordinary prisoner. I note also Dr Reutens' evidence that the average life expectancy from first diagnosis of dementia is of the order of 10 years but less where hypertension is present (as here) … 20 It is clear that [the respondent's] mental condition, both as it contributed to the offence, and at present, makes him an inappropriate vehicle for general deterrence. I am satisfied that he will not again commit an act of dangerous violence. … 22 A limiting term that is likely to end after an offender's understanding of where he or she is and why serves no useful public purpose and is, therefore, pointless …"

The grounds of appeal

1. The Director has pleaded five grounds of appeal. They are: "Ground 1: His Honour erred by finding that the respondent 'expressed guilt and remorse'. Ground 2: His Honour erred by finding that the respondent 'will not again commit an act of dangerous violence'. Ground 3: His Honour erred in principle in his statement of a 'purpose' of a limiting term. Ground 4: His Honour erred by failing to make a finding as to the objective gravity of the manslaughter. Ground 5: The sentence was manifestly inadequate."
2. The Director acknowledged that Crown appeals ought to be a rarity (Griffiths v The Queen [1977] HCA 44; 137 CLR 293; Everett v The Queen [1994] HCA 49; 181 CLR 295) and brought for the purpose of laying down principles for the governance and guidance of courts sentencing those who are convicted: more recently stated in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462, citing, inter alia, Griffiths and Everett. The Director proposed that "principles of governance and guidance" must include principles relevant to the avoidance of inadequate sentencing. In my opinion that is a mere generality and does not identify any principle to which this Court should address its attention. In order to succeed, the Director must establish that (in this case) the limiting term nominated was manifestly inadequate - that is, "below the range of sentences that could justly be imposed for the offence consistently with sentencing standards": Bugmy v The Queen [2013] HCA 37; 249 CLR 571.
3. I now turn to deal with the individual specific grounds pleaded on behalf of the Director.

Ground 1: error in finding that the respondent "expressed guilt and remorse"

1. This ground is founded upon the final sentence in para [5] of the reasons, extracted above.
2. Section 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act") sets out mitigating factors which, where relevant and known, must be taken into account in the determination of the appropriate sentence. Sub-paragraph (i) is in the following terms: "(i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both) …"
3. The point sought to be made on behalf of the Director was that a finding that the respondent was remorseful was not open in the light of the whole of the evidence of what the respondent had said following the killing. On behalf of the Director it was submitted that the respondent was "positively unrepentant". The Director contrasted the evidence, much of which is set out above, of the respondent almost gloating about what he had done, with the minimal statements of remorse.
4. In my opinion, if it were the case that his Honour had taken remorse into account as a mitigating factor he would have been in error. What the respondent did say that might qualify as an expression of guilt or remorse was very limited - he was sorry that his daughter had been present and (at one point) stated that he felt guilty. These expressions were entirely swamped by the vitriol that attended his tirade to the 000 operator. In any event, they would not meet the requirements of s 21A(3)(i). While what he said might be interpreted as an acceptance of responsibility, there was nothing to suggest that he acknowledged the injury, loss or damage caused (even to his daughter).
5. However, in my opinion, the ground is based upon a misconstruction of what his Honour said. The sentence that concludes [5] could not be said to be a finding of remorse for the purposes of s 21A(3)(i); his Honour simply recorded briefly that the respondent had said that he had no choice but to kill the victim because of her conduct, but had also expressed guilt and remorse. This was not a finding that he was in fact remorseful. It was simply an acknowledgement that the respondent had made some muted expression of guilt and remorse. In my opinion, remorse was not taken into account in the determination of the limiting term. I would therefore reject this ground.

Ground 2: the respondent "will not again commit an act of dangerous violence"

1. This ground is founded upon the passage in the reasons at [20].
2. At first instance, the Crown had urged that the respondent "poses a real risk of reoffending".
3. The Director maintained that submission on appeal. Reliance was placed on the evidence that the respondent's dementia is irreversible and will lead to further cognitive decline. The Director referred to evidence that the respondent continued to harbour feelings of resentment towards the victim and towards her family, and that these feelings had not diminished with time.
4. The evidence was that the respondent suffered, not only progressive dementia, but also physical ailments. He appeared physically frail. Although it appears that he had some mobility, he presented to medical appointments in a wheelchair. When seen by Nurse Parsons and Dr Welkee Sim, he walked with the aid of a four wheel walker.
5. At the time Adams J nominated the limiting term, the respondent was one month short of 69 years of age. He had been in custody for 4 years, during which time (it may be assumed) he had abstained from alcohol consumption.
6. In my opinion it was open to his Honour to make the assessment that he did. It may be that the respondent continues to harbour feelings of resentment towards the family of the victim, but his opportunity to translate any such resentment into violent action is, and will remain, virtually nil. I would reject Ground 2.

Ground 3: sentencing purposes

1. This ground is based on the observation by the judge, at [22] of his reasons, in which he stated that "a limiting term that is likely to end after an offender's understanding of where he or she is and why serves no useful public purpose and is, therefore, pointless".
2. Since the nomination of a limiting term involves the court in making the best estimate of the sentence it would have considered appropriate, following a normal trial of a person fit to be tried (s 23 of the Forensic Provisions Act), the provisions of s 3A of the Sentencing Procedure Act are applicable. Section 3A identifies the purposes of sentencing as: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community."
3. On a superficial examination, it may appear that there is some merit in the Director's contention. The observation by his Honour at [22] concentrates solely on the absence of any purpose to be served by bringing home to the respondent the gravity and consequences of his conduct. It does not mention the other sentencing purposes stated in s 3A. However, it has been held that the purpose of nominating a limiting term is not to punish: R v Mailes [2004] NSWCCA 394; 62 NSWLR 181 at [32]. Accordingly, the first of the stated purposes can be put to one side. It may also be seen that the purposes lettered (b), (c), (d) and (e), also have, in the circumstances of this case, little bearing. Adams J held (and the finding was not challenged) that, by reason of his mental disability, the respondent was an unsuitable vehicle for general deterrence. It follows from the respondent's progressive dementia, together with the express finding that he would not commit another act of violence, that protection of the community, and rehabilitation, have little (if any) relevance; and there is little to be gained by making an offender suffering from progressive dementia accountable for his actions.
4. Adams J was well aware of the purposes of sentencing stated in s 3A. Section 3A does not call for a ritualistic incantation of those purposes, and an express discarding of those that do not apply to the particular case under consideration.
5. The Director placed particular relevance on the need to denounce the conduct and recognise the harm done to the victim and to her family, as well as to the community. Failure to have regard to those purposes was an error, the Director argued.
6. It seems to me that the denunciation falls into the same category as general deterrence: an offender who is unsuitable, by reason of mental disability, to be a vehicle for general deterrence, is equally unsuitable to be the subject of denunciation. The irrelevance results from the diminished moral culpability, which itself results from the impaired mental capacity of the offender. Recognition of the harm done to the victim, her daughter, and the community certainly had a place in the sentencing exercise. On closer analysis of the reasons, I am not persuaded that that purpose was entirely overlooked. It finds its place in the observations at [7] and [17], extracted above.
7. I would reject this ground.

Ground 4: failure to make a finding as to objective gravity

1. There is no doubt, as the Director contends, that, leaving aside the respondent's impaired mental condition, this was an objectively serious example of manslaughter. Adams J said as much at [7]. He commented further on objective seriousness at [17]. The killing was certainly not an impulsive act, and had been at least contemplated, if not planned, for some time. The respondent clearly intended to kill the victim. In order to carry out that intention, he had equipped himself with a rifle, and had driven a distance of 26 kilometres. Having confronted the victim, he returned to the car to retrieve the rifle, for the very purpose of using it to kill her. The victim was shot within earshot of her (and the respondent's) 7 year old daughter.
2. The Director accepted that it can be a difficult task to make a judgment as to the extent to which a mental impairment diminishes responsibility, but urged that, had a proper assessment been made of objective gravity, it would have been apparent that, even allowing for the mental impairment, the crime was a very serious instance of manslaughter. But so much was explicitly recognised.
3. Senior counsel who appeared for the respondent, both at first instance and on appeal, referred to further observations made by the judge during the hearing as to the limiting term to be nominated. Although those observations did not find their way into the reasons formally given, it is clear that his Honour did appreciate the objective gravity of the offence.
4. The Director must go further than merely show that no finding was made. He must show that the failure to make the finding affected the determination of the limiting term. In my opinion he has not succeeded in doing so. The absence of any quantitative finding of objective gravity in the reasons does not impact on the exercise undertaken of identifying the limiting term to be nominated.
5. I would reject this ground of the appeal.

Ground 5: manifest inadequacy

1. In order to succeed on this ground, it is necessary that the Director establish that, in all of the circumstances, the limiting term nominated was unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357. Having regard to the respondent's mental state and deteriorating condition, I would not be prepared to reach such a conclusion. The circumstances of this offence bear a marked similarity to the circumstances of R v Zeilaa [2009] NSWSC 532, in which Howie J sentenced the offender to imprisonment for 4 years and 10 months, with a non-parole period of 2 years and 6 months. I would reject this ground of appeal.
2. In my opinion the Crown appeal ought to be dismissed.
3. PRICE J: I agree with Simpson J.
4. McCALLUM J: I agree with Simpson J.

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