R v Blanks

Submissions

1. Following the hearing, by leave, Ms Loukas SC who appeared on behalf of the defendant, submitted a bundle of reports and medical treatment notes which formed Annexure A to the Further Submissions on behalf of Judith Blanks dated 16 May 2016. The documents comprising Annexure A include a report of Dr Iyer dated 4 June 2012, a report of Dr Michael Harrison dated 13 November 2014, and serial reports of Dr Neil Janes. The additional medical reports to which I have referred, and to which the Crown does not object, has been marked as Exhibit 3 in the proceedings.
2. The Crown relied upon written submissions dated 27 April 2016. Those submissions were supplemented with further oral submissions on 28 April 2016.
3. On 28 April 2016, Ms Loukas SC relied upon her written submissions dated 28 April 2016, together with a folder of sentencing decisions, and her oral submissions. Subsequently by leave, as I have stated, Ms Loukas relied upon her Further Submissions on Behalf of Judith Blanks dated 26 May 2016 together with the documents constituting Exhibit 3.
4. I have, of course, had regard to all submissions made on sentence.
5. Under the MH (FP) Act a person is not sentenced in the ordinary way. Rather, the trial judge is required to nominate a term, called under that Act the limiting term, being the maximum period for which a person may be detained in institutional care for the offence.
6. In accordance with the provisions of s 23 if, following a special hearing, it is found on the limited evidence available that an accused person committed the offence charged or some other offence available as an alternative, the Court: 1. Must indicate whether, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence which the person is found to have committed, it would have imposed a sentence of imprisonment, and 2. Where the Court would have imposed such a sentence, must nominate a term in respect of that offence, being, as I have stated, the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence: s 23(1)(a) and (b).
7. Once the limiting term has been nominated, the Court refers the accused to the Mental Health Review Tribunal (the Tribunal) and makes such orders with respect to custody as it considers appropriate: s 24(1). The Tribunal determines the appropriateness of hospital treatment and notifies the Court accordingly: s 24(2), (3). The Court may make an order as to the custody of the accused: s 27.

Provisions Concerning the Limiting Term

1. Section 23 of the MH (FP) Act does not authorise a division of a limiting term into a minimum and additional term. It only requires the nomination of a total term: R v Mitchell [1999] NSWCCA 120 at [21]. As observed in that case, a minimum term would be inconsistent with the MH (FP) Act review process: at [21].
2. It was also observed by the Court in Mitchell that the purpose of the comparative estimate referred to in s 23 of the Act is to ensure that a limiting term under the MH (FP) Act is neither more harsh, nor more lenient, than a total sentence would have been in a case of a person fit to plead: at [32].

The Approach in Determining a Limiting Term

1. As s 23 requires that the best estimate be made of the sentence that the accused would have received after a normal criminal trial a sentencing judge must have regard to the usual sentencing principles: Mitchell at [35]. Accordingly, it is necessary in the present case to have regard, inter alia, to the following matters: 1. The maximum penalty provided by statute for the offence of manslaughter. 2. The gravity of the objective features of the case. 3. All relevant subjective considerations relevant to the defendant. 4. The "well-established principles of sentencing" as identified by the High Court in Veen v R (No 2) (1988) 164 CLR 465 at 476, which include the "protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform": Mitchell at [36].
2. In determining the limiting term to be imposed in this case, I must have regard to the defendant's mental condition at the time of the offence and the impact that it had, including upon the subjective features relevant to sentence.
3. An offender's mental condition is relevant to the length of the limiting terms in at least three ways:

• The offender's culpability.
• The likelihood of re-offending.
• The protection of the community.

1. Precisely how each affects the length of a limiting term depends upon the circumstances of each case: R v AN [2005] NSWCCA 239 at [3].

The Objective Circumstances of the Offending

1. The facts of the case are sufficiently set out in the Court's previous judgment: R v Blanks [2016] NSWSC 361 and, aside from some matters, need not be repeated here. In brief, the defendant and the deceased lived a nomadic lifestyle, often camping in wilderness areas. They had spent a good deal of their time drinking alcohol and smoking cannabis. Both took medication under prescription being an opiate called Tramadol.
2. At the time of the offence they were camping in a remote area of the Brisbane Waters National Park. The relationship between them was a tempestuous one. The evidence indicated that on the day of the offence the defendant was the aggressive partner constantly yelling and swearing at the deceased. There was other evidence that indicated that the defendant had exhibited conduct as the aggressive partner prior to the day of the offence.
3. On 14 January 2014, the defendant at one point had threatened to stab the deceased and to tip over his beer. She denied that she had assaulted the deceased at any time in her ERISP.
4. On 15 January 2012, the defendant was preparing a meal. She was cutting up vegetables with a blue knife and she was then located in the tent. The deceased entered the tent and, on the Crown case, an argument ensued with the defendant lashing out at the deceased with the knife, she then being in the seated position, striking him in the upper thigh severing his femoral artery, as a result of which he bled to death.
5. In the judgment delivered on 1 April 2016, I examined the evidence relating to the circumstances of the offence, including the expert evidence relied upon by the Crown. In proceeding to sentence the defendant I am to have regard to, and act upon, the basis of the findings made in the judgment that I delivered on 1 April 2016. Those findings include the following: 1. That the deceased died by reason of a knife wound inflicted by the defendant. As indicated on autopsy performed by Dr Beer on 17 January 2012, the stab wound was located in the upper inner medial aspect of the deceased's left thigh. The wound, after penetrating muscles, soft tissues of the thigh, severed the left femoral artery. Dr Beer noted the stab wound to the left upper thigh had gone up approximately at a 45 degree angle. 2. At the time of inflicting the wound the defendant was, as I have stated, in the seated position using the knife in question to cut vegetables for an evening meal. Following an argument after the deceased entered the tent then being used, the defendant lashed out with the knife in an upwards movement from that position. 3. The defendant's reaction in doing so, though unlawful and dangerous, was found to have exhibited features characteristic of a spontaneous reactive action, though one which carried with it an appreciable risk of serious injury. The defendant's action in doing so was devoid of any actual intention to inflict grievous bodily harm. 4. On a consideration of the whole of the evidence I was not satisfied beyond reasonable doubt that at the time of stabbing the deceased the defendant had an intention to kill the deceased, or to inflict grievous bodily harm upon him. 5. In acting as she did in stabbing the deceased, the defendant was aware that her act was dangerous and a reasonable person would have appreciated that the act was one which, in the circumstances, exposed the deceased to the risk of serious injury. Such an unlawful and dangerous act occasioning the death of Mr MacDonald in the present case constituted the offence of manslaughter.
6. The defendant's abusive conduct towards the deceased is to be examined and understood, and assessed in light of the medical evidence. That evidence establishes that, from a reasonably young age, the defendant had developed a chronic alcoholic and substance abuse disorder. Her conduct towards the deceased when she inflicted the stab wound upon him was, on that evidence, related to her chronic alcoholism and substance abuse disorder and associated impairment of her cognitive processes.

The Defendant's Medical Condition

1. The defendant is presently aged 58 years. She has a relatively slight and essentially irrelevant criminal record. There is evidence that her mother was of Aboriginal heritage.
2. The evidence as to her unhappy childhood upbringing which included her exposure to violence, and the fact in her later years of her two traumatic relationships with her first and second partners, are principally based upon her accounts as given by her to various medical practitioners. Caution must be exercised in relying upon self‑reporting by an accused person to examining and treating medical practitioners where there is no direct evidence from the person charged with an offence: R v Qutami [2001] NSWCCA 353. It has accordingly been necessary to examine all the medical reports, including those written by medical practitioners who have been involved in treating the defendant. The reports have been examined in order to determine whether there exists a consistency and therefore a reliability in her accounts. They also, of course, have been examined with a view to reaching a full and proper understanding of the defendant's mental state as at the date of the offence.
3. It is noteworthy that in the report of Dr Iyer, Consultant Psychiatrist, dated 4 June 2012, written to Dr Michael Harrison following the latter's referral of the defendant for psychiatric assessment, that Dr Iyer noted that the defendant was reluctant to disclose personal information. However, with encouragement, she admitted that she had had a very unhappy childhood and she gave an account of three traumatic relationships. The partners of the first two relationships were said to have inflicted domestic violence or physical abuse upon her. The defendant admitted to smoking marijuana on a regular basis and drinking alcohol on almost a daily basis, and that she had led a vagrant lifestyle. Dr Iyer noted that the defendant's condition had been complicated by substance abuse suggestive of a "Schizotypal personality" which is characterised, amongst other things, by unstable relationships and substance abuse.
4. Dr Michael Harrison in his report of 13 November 2014 to Aboriginal Legal Services, stated that he had taken over the care of the defendant in 2011 that is the year before the offence. Dr Harrison said that based upon his initial consultations: "…at the time I wondered whether she might have bipolar disorder or schizophrenia but could not convince myself of either diagnosis. She has been on [sic] long-term user of marijuana which can clearly cause psychosis …"
5. Dr Harrison noted that he had in the few years prior to his report treated her with the use of Seroquel XR and subsequently with the antidepressant drug Citalopram.
6. Dr Harrison in a report dated 29 December 2011 to Dr Lester in relation to Ms Blanks, recorded a past history of bipolar disorder.
7. On 20 July 2009, Dr Raj Soni, Respiratory Physician, wrote to Dr Sutherland. In that report he noted that at the age of thirty the applicant had been smoking marijuana mixed with tobacco which he estimated approximated twenty cones a day. He also noted that she drank one or two glasses of wine or beer. He discussed a referral of the defendant to the Drug and Alcohol Service to wean her off marijuana.
8. Dr Richard Furst, Consultant Forensic Psychiatrist, in his report of 18 December 2014, identified the sources of information available to him. These included the medical reports of Dr Harrison and Dr Neil Janes. He recorded the following matters in relation to the defendant's psychiatric history. "Ms Blanks was apparently exposed to domestic violence and her father's drinking, claiming that he would 'bash mum all the time'. Her mother later became a drinker herself. Ms Blanks recalls feeling unhappy as a child, staying with her sister after leaving home from the age of 14‑16 years. She believes that she was depressed throughout her childhood. Her previous relationships, including her marriage, have mostly been violent; Ms Blanks being the victim of domestic violence on numerous occasions." (Report, p 3)
9. He also noted that she had drunk alcohol from the age of 18 years and that she averaged 1.5 litres of wine daily and was still drinking. He also obtained a history of cannabis abuse: Report, p 3.
10. Dr Furst also noted both the concerns expressed by Dr Harrison in his report of 13 November 2014 relating to the defendant's mental health as well as the comments of Dr Iyer on assessment of the defendant on 31 May 2012 in which he had noted that the defendant had had a very unhappy childhood and was exposed to domestic violence and cannabis misuse and daily drinking of alcohol.
11. Dr Hepner, Clinical Neuropsychologist, in her report of 11 May 2015, noted the history obtained by Dr Furst in relation to the defendant's reported history of having been a victim of domestic violence during previous relationships, including her marriage. Dr Hepner expressed the opinion that the defendant had memory deficits, and probably had cognitive deficits.
12. Dr Hepner also obtained a history from the defendant that her father had alcohol problems and beat her mother, and that she [the defendant] was hit by her father sometimes around the head: Report, p 3. Dr Hepner also noted that the defendant's ex‑husband (apparently her first partner) abused alcohol and hit her and was psychologically abusive towards her: Report, p 4.
13. Finally, Dr Hepner observed that the defendant stated that she had commenced drinking from the age of 14 or 15 years of age and that she said she had drank on a daily basis after her separation and divorce. On her account, in the previous five to ten years she had consumed about half a bottle of spirits and 1.5 litres of wine per day: Report, p 5.
14. Dr Olav Nielssen, Forensic Psychiatrist, examined the defendant on behalf of the Director of Public Prosecutions on 9 February 2015 and provided a report dated 3 March 2015. It is noted that he obtained a history of the defendant's childhood years. He recorded that the defendant told him that she was well cared for during her upbringing and did not report neglect or periods of trauma: Report, p 2.
15. It is, however, to be noted that on the single occasion that Dr Nielssen interviewed the defendant, he observed that she was "affected by alcohol and was taking several sedative medications". He agreed that she should undergo more detailed neuropsychological evaluation once she was free of drugs and alcohol for a period.
16. However, Dr Nielssen recorded that the applicant said she had had contact with mental health services during her adult life and that she had seen a psychiatrist in Gosford who diagnosed her with schizophrenia, bipolar, depression and anxiety: Report, p 2.
17. Her history of substance abuse was consistent with other recorded histories in that the defendant told him that she had been drinking alcohol from the age of 14 years and that she continued to drink "more and more": Report, p 3.
18. She also gave a history of having smoked cannabis for most of her adult life. He noted that she said that her mother was of Aboriginal heritage.
19. Dr Nielssen noted "corroborative information" was provided at his interview with the defendant by the defendant's daughter. He concluded that the diagnosis of possible substance‑related brain damage was made on the basis of the defendant's daughter's account of a decline in social performance and cognitive function in a pattern that would be consistent with the effects of long‑term hazardous alcohol intake: Report, p 7.
20. Finally, I note that Dr Sathish Dayalan, Consultant Forensic Psychiatrist, in a report dated 22 April 2016, obtained a consistent psychiatric history of a violent and disruptive home environment. He noted that her father was described as a violent alcoholic who used to hit the children with rubber hoses and iron rods.
21. He also obtained a consistent history of alcohol abuse and cannabis abuse as at the time of the offence. A diagnosis was made that the defendant was suffering from a depressive disorder at the time of the offence. It was also noted that she had been assessed as having impairment of frontal lobe functions on the psychometric assessment. That was followed by the comment: "…poor impulse control and impaired judgment are often features of frontal lobe impairment. It is likely that her mental health issues impaired her judgment at the time of the offence and ability to restrain impulsive behaviour. Her prior history of witnessing domestic violence and being a subject of domestic violence might have contributed to her behaviour at the time of the offence if there was indeed violence perpetrated by the victim towards her."
22. Dr Dayalan also noted that the defendant is likely to have: "…a genetic predisposition to substance use disorder given both her parents and all her siblings suffer from substance use disorder. Her early traumatic experiences and disruptive environment are likely to have been contributing factors to substance use disorder and depressive symptoms."
23. In the Further Submissions on Behalf of the Accused, Senior Counsel for the defendant, Ms Loukas, submitted that the preponderance of the evidence supports the finding that the defendant's upbringing was characterised by domestic violence, disruption and substance use by her family members. That background, it was submitted, was attested by three of the four experts in the case, as well as by Dr Iyer's letter. It was further submitted the inconsistent history found in Dr Nielssen's report should be viewed in light of the defendant's reluctance to divulge information about her personal history and the limitation on Dr Nielssen's report given that the defendant was stated to be under the influence of alcohol and sedatives when interviewed. I accept those submissions.

Self-Induced Intoxication

1. Under s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999, in determining the appropriate sentence for an offence, the self-induced intoxication of the defendant at the time the offence is committed, is not to be taken into account as a mitigating factor. See also s 428A of the Crimes Act.
2. It is clear on the evidence that the defendant was substantially affected by alcohol and was intoxicated on the day of the stabbing incident. In my judgment of 1 April 2016, I stated that I accepted the Crown's submission that this was a case involving self-induced intoxication which is not to be taken into account in accordance with the provisions of s 428E(1)(a) of the Crimes Act.
3. However, it remains for me in determining the limiting term to be imposed whether the evidence establishes more than mere self-induced intoxication on the day of the offence. I raised this question with counsel and have had the benefit of their submissions directed to that issue.
4. I have earlier referred to the medical histories which I accept. Those histories establish that the defendant was herself a victim of domestic violence, in particular, during her childhood at the hands of her father, and, subsequently, during the course of her first two relationships during which, I accept, she was subject to violence by her first two partners in accordance with the history that she has provided to examining medical practitioners. On the medical evidence, the personal violence to which she was exposed has a causal connection with her abuse of alcohol and cannabis.
5. On sentencing it is necessary to take into account the relevant background history of violence as a mitigating factor in determining sentence. In Bugmy v R (2013) 249 CLR 571, the High Court referred to the principles that were articulated by Wood J (as his Honour then was) in R v Fernando (1992) 76 A Crim R 58. The High Court referred to those principles with approval. French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ observed: "The proposition stated in Fernando are largely directed to the significance of the circumstances that the offender was intoxicated at the time of the offence. As Wood J explained, drunkenness does not usually operate by way of excuse or to mitigate an offender's conduct. However, his Honour recognised that there are aboriginal communities in which alcohol abuse and alcohol‑related violence go hand in hand. His Honour considered that where an offender's abuse of alcohol is a reflection of the environment in which he or she was raised it should be taken into account as a mitigating factor …" (at [38])
6. The medical evidence in my opinion establishes, as I have stated, that the defendant was exposed to domestic violence over many years and that her alcohol/substance disorder has resulted in cognitive impairments. In accordance with accepted sentencing principles, the defendant's mental and psychiatric condition at the time of the offence must be taken into account, inter alia, in determining the nature and level of the defendant's culpability. So also in some cases where drug addiction gives rise to impulsivity or disorder in thought processes, or where addiction is not a matter of personal choice but is due to circumstances for which an offender is not primarily responsible: R v Henry (1999) 46 NSWLR 346 at [273] per Wood CJ at CL. Such circumstances, in my opinion, apply in the present case.
7. The critical question is what limiting term is required to reflect the objective and subjective facts. The sentencing exercise must, as I have earlier stated, take into account the objective gravity of the offence, involving as it did the loss of a human life, as well as the circumstances of the defendant.
8. The defendant is to be sentenced for involuntary manslaughter by unlawful and dangerous act. In many cases an unlawful and dangerous act occurs in the context of alcohol fuelled violence often by young men. General deterrence has particular application in sentencing in such cases. As I will shortly discuss, the defendant in this case is not in that category. Whilst she was affected by alcohol at the time of stabbing the deceased, the medical evidence establishes that she suffered from cognitive and psychological dysfunction due to her chronic alcohol/drug disorder and this must be taken into account.
9. In determining sentence I must also bring into account the purposes of sentencing which under s 3A of the Crimes (Sentencing Procedure) Act 1999 include: (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.
10. I must also take into account the relevant aggravating and mitigating circumstances under s 21A of the Sentencing Act.
11. In the present case, Ms Loukas' submission accepted that the use of a knife and the associated violence is a relevant factor in the objective circumstances of the case and bears upon the objective seriousness of the offence. That said, however, they are not to be additionally brought into account as aggravating factors under s 21A(2)(b), (c).
12. In terms of objective seriousness, the most serious feature of the defendant's actions, of course, is her killing of the deceased in the circumstances which include the fact that the offence, as I have stated, was an intentional but spontaneous act, not a planned act.
13. I also take into account that the defendant has not displayed remorse or accepted responsibility for the offence so this is not a case where that operates as a relevant mitigating factor under s 21A(3). However, that said, her lack of remorse may well have a relationship to the impairment in her cognitive processes as discussed by Dr Hepner in her neuropsychological assessment report and by Dr Dayalan.
14. The Crown in oral submissions appropriately acknowledged that the defendant has a diagnosis of a substance abuse disorder with possible substance abuse brain damage and a possible underlying psychiatric illness: T 9. The psychiatric illness, the Crown submitted, was less of a problem than the substance abuse disorder. The Crown, however, submitted that in accordance with s 428E of the Crimes Act 1900, self-induced intoxication may not be taken into account. The medical evidence that establishes a substance abuse disorder on the one hand, and s 428E on the other, the Crown submitted, makes for a difficult balancing exercise: T 10.
15. The Crown acknowledged that the defendant's consumption of alcohol may well have provided the basis for the defendant's actions in lashing out with the knife: T 10.
16. As to the issue of deterrence in sentencing, the Crown submitted that the defendant's mental disorder should be classified as of moderate severity which would moderate the need for general and specific deterrence but does not negate it entirely. I accept that submission.
17. Also related to the issue of the defendant's mental/psychiatric condition is the need, as I have earlier indicated, to bring into account the protection of the community as an important consideration. The level of danger which a mentally ill offender presents to the community, it has been recognised, is a countervailing consideration to all other relevant sentencing principles: R v Engert (1995) 84 A Crim R 67; Courtney v R (2007) 172 A Crim R 371 at [26], [59], [83]; Agha v R [2008] NSWCCA 153 at [24]. I consider the defendant's rehabilitation prospects to be limited, and dependent upon her abstinence from alcohol and prohibited drugs.
18. I received Victim Impact Statements from the deceased's mother, Margaret MacDonald, dated 14 April 2016 and the sister of the deceased, Larica MacDonald, dated 24 April 2016. These statements were read in Court. They are deeply moving, expressing their grief and the impact upon them, and family members, of the death of Shayne MacDonald, and the pain and loss which they will, unfortunately, continue to experience.
19. The tragic loss of the life of Shayne MacDonald is, of course, an immense loss. The Victim Impact Statements are expressed in dignified and clear terms. Their significance is, of course, to be fully acknowledged. I express my deepest sympathy to Mr MacDonald's family on their sad loss. Whilst acknowledging and having had regard to the Victim Impact Statements and the provisions of s 28(4) of the Crimes (Sentencing Procedure) Act 1999, I consider that the limiting term to be imposed should be made only on the basis of the evidence before the Court and the findings made on the evidence.
20. Having considered the evidence, it is clear, in my opinion, that the intentional dangerous and unlawful act of the defendant in her use of the knife in stabbing the deceased in the course of an argument was, as earlier stated, an unplanned act of a spontaneous, impulsive nature. The nature of the stabbing incident accordingly does not exhibit the level of culpability associated with a planned knife attack upon a victim. As well as the nature of the act, there must also be taken into account, as I have indicated, that the defendant's intoxicated condition at the time she stabbed the deceased was causally related to her chronic alcohol/drug disorder. The medical evidence, in turn, links that disorder to the defendant's dysfunctional personal life marked, as I accept it was, by a history of domestic violence. When all such matters are taken into account, I consider that the offence of manslaughter, as found on the limited evidence available, to be towards the lower end of the range of culpability for offences of that kind.
21. The Crown on sentencing in its written submissions provided references to "similar cases" at [33]-[37] to which I have had regard.
22. I am satisfied that if the special hearing had been a normal trial of criminal proceedings, in terms of s 23(1)(a) of the MH (FP) Act, I would have imposed a sentence of imprisonment.
23. Taking all the circumstances into account, in my opinion the appropriate limiting term is 5 years, commencing on 1 April 2016. Pursuant to s 24 of the Mental Health (Forensic Provisions) Act 1990, the defendant is referred to the Mental Health Review Tribunal.

Order (1) A limiting term of 5 years is nominated to date from 1 April 2016. (2) Pursuant to s 24 of the Mental Health (Forensic Provisions) Act 1990, the defendant is referred to the Mental Health Review Tribunal. (3) The defendant is to be held in custody in an appropriate institution until further assessment by the Tribunal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 June 2016