R v Connors

Supreme Court of NSW|2018-09-21|Before: Hulme J

Solicitors: Solicitor for Public Prosecutions Legal Aid NSW File Number(s): 2017/145981

Judgment

HIS HONOUR: Mr Nathan Connors is to be sentenced for the manslaughter of his mother, Ms Lynda Connors, at Sylvania on 15 May 2017.
Manslaughter can be committed in a variety of ways. In this case Mr Connors would otherwise be guilty of murder but the Crown has accepted his plea of guilty to manslaughter on the basis of what is called "substantial impairment by abnormality of mind". Parliament has provided for this in s 23A of the Crimes Act 1900 (NSW). There are two parts to the concept of "substantial impairment by abnormality of mind", both of which the Crown accepts. First, at the time he killed his mother, Mr Connors' capacity to judge whether his actions were right or wrong and his capacity to control himself were substantially impaired by the mental illness of schizophrenia. Secondly, this impairment was so substantial that Mr Connors' liability for murder should be reduced to manslaughter.
The maximum penalty for manslaughter is imprisonment for 25 years.
I propose to first recount Mr Connors' background and life history insofar as it is relevant, because that will provide the context in which the offence occurred which I will describe next. I will then refer to subsequent events and various other matters that are relevant to the assessment of sentence.

Mr Connors' background and personal circumstances

Mr Connors is aged 29, is single and has no dependents. His parents, Brian White and Lynda Connors, separated when he was aged 2. Thereafter he has lived with his mother except for a period in which he lived with Mr White at Gwandalan on the Central Coast from the age of 7 until about 11.
Mr White described Mr Connors as "a typical kid when he was younger" but their contact dwindled in Mr Connors' late-teenage years. Mr White described him as "very reserved and shut off" and "it got worse and worse". He never thought that his son had a mental illness.
Mr White's mother, Ms Valerie Cameron, saw Mr Connors regularly when he was young but this became less frequent in 1999 when she moved to Queensland. She also described him becoming uncommunicative as years went by. From the way he spoke and from his custom of locking himself in his room she formed the impression that he was "an angry young man". She had no idea he might be mentally ill.
Mr Connors completed Year 8 at school at the age of 13. He claimed that he left school because of bullying. He has no formal vocational qualifications. His longest job was for six months as a courier and labourer. He was unemployed at the time of his arrest. He once had a girlfriend for two months but has had no significant relationships. He has never lived separately from one or the other of his parents.
He began drinking alcohol at the age of 13. He told Dr Andrew Ellis, psychiatrist, that he would drink half a case of beer once or twice a week. He said there were occasions in his life when he would drink on a daily basis and there were some episodes of alcoholic blackouts.
Also at the age of 13 he began smoking cannabis. He estimated he would smoke about half a gram per day. He reported he became increasingly paranoid when he would smoke and he would experience withdrawals when cannabis was not available. He used crystal methylamphetamine (ice) in his mid-20s for about three months. He has used ecstasy a few times. He denied any intravenous drug use.
Mr Connors also reported having had a gambling problem in his early 20s but no longer does.
A substantial body of material was tendered on the subject of Mr Connors' mental illness. He had a number of attendances upon doctors and presentations at hospitals from July 2011 onwards in which there were, with the benefit of hindsight, signs of Mr Connors being afflicted by mental illness. For example, there was reference to him "hearing voices" in July 2011. A general practitioner's notes made the following month include reference to "hearing voices", "talking to himself" and "possible schizophrenia".
A number of concerning observations were recorded following hospitalisation after a serious motorbike accident in July 2013. Six months later a family friend noted that Mr Connors had changed and was becoming "more withdrawn, very slow when he spoke and in his actions".
In August 2015 a general practitioner noted that Mr Connors was not working; he was not attending his Centrelink appointments; he looked depressed and had "nil motivation". It was also recorded that he "has had lots of counselling" and "multiple antidepressants with nil benefit".
In September 2016, another general practitioner noted low mood; over thinking; negative thinking; and lack of motivation. She completed a GP Mental Health Care Plan noting depression and anxiety but "nil risk to others". She referred Mr Connors for a psychological assessment and to a doctor for further medication for his depressive mood. Three days later she recorded that Mr Connors was not taking his medication and had not made any plans to see the psychologist. He said he "will help himself".
The family friend reported that in the few months before her death Lynda Connors had discussed Mr Connors' deteriorating condition. She said that he was more withdrawn and was not leaving his room. In March 2017 Lynda Connors said that he had started doing strange things like sleeping in her bed; standing at the end of her bed whilst she slept; and having mood swings, tantrums and talking to himself.

The killing of the offender's mother

Mr Connors went with his mother to Darkes Forest (between Sydney and Wollongong) on Sunday 14 May 2017 which was Mothers' Day. Ms Connors kept a horse there which she rode. They returned home to Sylvania in the late afternoon. At some time that night while Mr Connors' older brother Shannon was at work, Mr Connors attacked his mother in her bed with a hammer and killed her. He gave the following account to Dr Ellis about it: "He said by May 2017 he had not taken antidepressant medication for one month. Prior to this he had been inconsistent in taking it. He was not seeing any mental health, or general health professional. He was smoking 1g of cannabis daily. He said he stopped cannabis in the 2 weeks prior to his arrest. He was drinking two 6 packs of beer every fortnight. At the time he was living with his mother and unemployed. He was stressed as he had lost his welfare payment. [Other evidence confirms that this occurred in January 2017.] He reported that he had no major conflict with his mother. He said there were minor arguments over sharing cigarettes and household chores. … He was reading the Bible daily. He said he was punching walls due to his stress which caused injuries to his hands. He said that the voices he was hearing were present and had been long term. He was hearing them nearly every day. He held the long term belief he was a prophet. The voices told him that unidentified people would come and take his mother's soul. If this occurred her soul would be trapped and she could never get to heaven. He formed the belief that if he did not kill his mother her fate having her soul taken would be much worse. He believed the voice was communication from God and part of his purpose as a prophet. He had been observing his mother at night to see if her soul was intact. He said on the night of 13 May 2017 he did not sleep. On the day of 14 May 2017 he drove with his mother and waited in the car while she was horse-riding, as was usual. He saw signs in the clouds that let him know someone was plotting to take his mother's soul. When they returned home he went to sleep and upon waking the voices returned and again told him of the risk to his mother's soul. The deep voice told him to "take your mother's soul before someone else does". He formed the view that he had to act at once. He says he grabbed a hammer from the house and went to her room where she was asleep. He said that he hit her repeatedly with the hammer. He said it was horrible and it haunts him. He remains of the view that "I had to do it, it was meant to happen, it was destiny". … He then took a shower. He took his mother's car and supplies. He said that his mother's clothes were already in the car, as was the pitchfork. He said that his plan was to go and live in the bush where the people or demons who were stealing souls could not find him. He took his compound bow for hunting. He was driving in the inner west area of Sydney at first, as he thought he was meant to find a person there called Michael who was a saint. He thought this person would help him or give him further instructions."
Other evidence gathered by police indicated that Mr Connors made a call to the triple zero emergency number at 3.53am on 15 May 2017 but cancelled it before it was connected. CCTV footage supports an inference that he drove away from the home at about 4.45am.
Simon Connors was later to tell police that his mother and Mr Connors returned home on Sunday 14 May 2017 at about 4.00pm after having spent the day at Darkes Forest. Simon Connors left the home at about 10.30pm to attend to his night shift work. When he returned home at about 6.30am on 15 May 2017 he found his mother dead in her bed.
Simon Connors contacted police and they arrived promptly. Mrs Connors was found in her bed with a significant amount of dried blood pooled around her head. She was found to have significant head injuries including a lacerated ear and a puncture wound that appeared to have penetrated her skull. These injuries had been caused by Mr Connors having struck her head multiple times with a blunt object. A subsequent autopsy report included that the direct cause of death was multiple traumatic craniofacial injuries.
Mr Connors was found by police driving erratically on King Street at Newtown just before 8.00am that morning. He was the sole occupant of the car (aside from the family dog). He was arrested and taken to Newtown police station. He answered police questions in a monotone. He denied having a mental illness. He was told that police would like to speak to him about his mother's death, telling him that she had passed away earlier that morning. He responded without emotion, "Really, how did it happen?" He denied knowing what happened and claimed he was not home last night.
Mr Connors agreed to be formally interviewed. He denied the events. He spoke in rhymes at times with idiosyncratic language peculiarities. Many of his answers were unresponsive and nonsensical.
Photographs taken of Mr Connors at the police station show him to be extremely thin, perhaps emaciated.
In a conversation on 4 September 2017 with a close friend of his mother, Ms Sandra McCamley, Mr Connors said he did not remember what had happened but said various things including that everything had been "bottled up inside me"; all he could see was "darkness"; he was "angry and frustrated"; and "something went click in my brain".

Subsequent events

After reception in to Corrective Services custody on 17 May 2017 Mr Connors was noted by staff to not engage, display poor eye contact and not be willing to answer questions. He would only nod or shake his head. He was noted to be dishevelled and significantly thought disordered with difficult to follow conversation. He was seen on 22 May 2017 by Dr Sunny Wade, forensic psychiatrist, to whom he reported beliefs regarding persecution, religion, mind reading and special powers. He was guarded and provided vague answers. He displayed clanging and rhyming associations and was considered to be thought disordered, perplexed and presented impressionistic responses. The diagnostic impression was a first presentation with psychosis or schizophrenia. He was referred to the Mental Health Screening Unit (MHSU).
It is not necessary to recount further observations made by the various mental health practitioners. Suffice to say that Dr Ellis saw Mr Connors for the purpose of providing reports to his lawyers on 26 October 2017, 20 January 2018 and on 12 August 2018. He made a diagnosis of schizophrenia after the first meeting and review of the medical records and has maintained it since. He also considered that Mr Connors met the criteria for substance use disorder, currently in remission in a controlled environment.
Following the most recent meeting, Dr Ellis wrote that Mr Connors said that he still receives daily subliminal message communications from the television telling him that people are out to hurt him and that demons are coming. Sometimes he truly believes this and gets scared. He believes that people are watching him through the television and that the television refers to what he is doing.
Mr Connors also still hears voices every day. They have the same content as the television and he believes that the voices work together with the people in the television. He said he hears a deep voice which he thinks is a demon and another voice which he calls "the second opinion".
He still believes that he had a purpose to protect his mother's soul and spread wisdom. He still "kind of" thinks that he is a prophet. He told Dr Ellis that he does not know what he would do if he saw someone he thought was a demon or someone whose soul he thought needed saving by killing them. He said he would wait until the voices told him what to do if those circumstances arose.
Mr Connors says that he now hates himself for having killed his mother. He said that there was probably another way to protect her. He said that he should have just told her that she was under threat by demons.
Mr Connors told Dr Ellis that he had heard of the term schizophrenia but was not sure that it applied to himself. He said that he would accept any psychiatric treatment whilst in custody or on release on parole. He accepted that he had some sort of mental condition that needed ongoing treatment.
Dr Ellis considered that Mr Connors has had a partial response to antipsychotic treatment during his time in custody. He said that the recommended treatment of schizophrenia is antipsychotic medication plus psychosocial interventions, the latter not generally being available in custody. Dr Ellis also thought Mr Connors would benefit from a switch to a more effective antipsychotic medication such as clozapine given his ongoing experience of delusions and hallucinations. He considered that he has further potential to improve if he receives more assertive psychiatric treatment; a type of treatment which is generally available in forensic psychiatric hospital units.
Dr Ellis wrote at the end of his report of 12 August 2018, under the heading "Prognosis": "The mainstay of a positive future prognosis is assertive psychiatric treatment. He will require antipsychotic medication indefinitely and other psychosocial treatments geared towards schizophrenia. In addition he should receive ongoing substance use education and counselling as well as vocational and living skills training tailored to his cognitive function. These psychosocial interventions are likely to have more impact if his delusions and hallucinations are better controlled. He should remain under the care of psychiatric services whilst in custody, and when released to the community should be referred to community psychiatric services. If he remains with active delusions and hallucinations at the time of the potential release consideration should be given to referring him for inpatient forensic psychiatric hospital care prior, so that release can be done in a staged fashion. Consideration of a Community Treatment Order under the Mental Health Act should be undertaken if his voluntary participation with treatment is questioned. Substance use should be monitored for by urinalysis. He will likely require supported accommodation upon release as he has never substantially lived independently. The available evidence would suggest that persons who have schizophrenia under forensic mental health care have very low rates of recidivism, compared to persons who have schizophrenia under the sole management of correctional services."
Mr Connors' grandmother, Ms Valerie Cameron, said in her affidavit that she had spoken by telephone with Mr Connors since he has been in custody. She was "over the moon" about hearing from him. She described him as "calmer than I have ever remembered him to be and more open to me". She wishes to have a relationship with him in the future, saying "If he's released we will get together, we will do happy things".
Mr Connors' father, Brian White, apparently is also open to rekindling their relationship and counsel indicated that her client was interested in this as well. It is significant that both Mr White and Ms Cameron were present at the sentence hearing.

Opinions as to substantial impairment

Dr Ellis wrote in his report of 3 February 2018 the following as to the availability of the partial defence to murder of substantial impairment by abnormality of mind: "In regards to substantial impairment of mind, at the time of the offence he was suffering from untreated schizophrenia, as noted previously. This disorder manifests with delusions, hallucinations and disorganised thought processes. These symptoms were active at the time the offence was committed. These fundamental mental processes were impaired at the time based on his self-report, in the preceding period based on observations by others, in particular his mother who conveyed her concerns to Ms. McCamley prior to the offence and immediately after the offence based on observations of receiving mental health staff in custodial settings and his presentation at police interview. It is likely that his understanding of events was clouded by delusional beliefs and his judgement around actions and the ability to control impulses was similarly impaired. Schizophrenia is an underlying condition of internal origin which leads to these abnormal mental processes. On balance it is likely a court could find the partial defence of substantial impairment available to him."
Professor David M Greenberg, forensic psychiatrist, was engaged by the Crown and he conducted a psychiatric assessment of Mr Connors on 21 March 2018. There was no suggestion that anything Mr Connors told him was inconsistent with what he had told Dr Ellis. Professor Greenberg made the diagnosis of Chronic Schizophrenic Disorder and noted a history of chronic cannabis use. As to the former, it was his opinion that Mr Connors had a "slow insidious onset of a schizophrenic illness" which was not previously formally diagnosed.
Professor Greenberg suggested neuro-psychological testing for executive functioning impairment because of the history of learning difficulties and of a concussion head injury in 2013 and because of the schizophrenic mental illness and persistent use of illicit substances.
As to the availability of the partial defence of substantial impairment by abnormality of mind, Professor Greenberg wrote: "With regards to a partial defence of substantial impairment at the time of the alleged offence, I'm of the opinion that Mr Connors suffered from an acute episode of his schizophrenic illness. At that time, he was not receiving specific treatment to address his schizophrenic illness. There is evidence that he was grossly disorganised in his thought processes and he likely was suffering from auditory hallucinations and paranoid ideation/delusions. I'm of the opinion that on balance Mr Connors had the capacity to understand the events but his judgement was impaired with regard to whether his act actions were right or wrong and he had impairment in controlling himself at the time of the alleged offence. I am therefore of the opinion that the accused capacity must have been substantially impaired at that time because he was suffering from an abnormality of mind arising from an underlying condition. In my opinion, he therefore likely has a partial defence of substantial impairment available to him."

Intellectual / cognitive impairment

Dr Ilana Hepner, clinical neuropsychologist, was engaged to carry out an assessment of Mr Connors' current level of cognitive function following the suggestion by Professor Greenberg. Her report of 6 August 2018 is very detailed and helpful. It includes that "it is more likely than not that Mr Connors meets the current criteria for an intellectual disability of mild severity". She explained: "The history of chronic psychiatric disorder, longstanding substance abuse and repeated minor head injuries in his life (particularly the head injury sustained in 2013) would compound his cognitive/intellectual deficits and result in poorer overall outcome. The more severe deficits in memory and executive function detected on current assessment would be considered consistent with the additional impact of these conditions. Given the longstanding and chronic nature of Mr Connors' multiple conditions, it is likely that the intellectual and cognitive deficits detected on current assessment are longstanding and were present at the time of the offence. Compared to the normal/healthy population, individuals with limited intellectual function/intellectual disability are more likely to have poor coping and communication skills. They are also more likely to have difficulties understanding/recognising when they are in need of assistance and seeking out appropriate assistance. These issues would be magnified in individuals with dual diagnosis (i.e., intellectual disability and mental health issues/psychiatric disorder) Considering Mr Connors' limited intellectual function and other cognitive deficits (particularly executive dysfunction), it is likely that his capacity to recognise that he was mentally unwell and seek out appropriate treatment would have been significantly reduced relative to an ordinary person. The effects of his active, untreated psychiatric disorder at the relevant time and in the preceding period would have compounded the issues."
Dr Hepner made a number of recommendations for assistance to be provided to Mr Connors, both while in custody and later when released into the community: see her report at 14.1 - 14.4. I will be recommending that her report (and others) be referred to the Justice Health and Forensic Mental Health Network.
Dr Ellis responded to Dr Hepner's assessment in his final report of 12 August 2018. It caused him to revise his own opinion that there was no evidence for an intellectual disability (cognitive impairment at a disabling level prior to the development of schizophrenia). He noted additional material that was available to Dr Hepner including that Mr Connors was assessed by behaviour and learning support services at the age of 10 and found to be "very low in all areas". He noted that he did not receive a formal diagnosis of intellectual disability at that time. He also noted that Mr Connors displayed poor performance on a global measure of intelligence in 2018. Dr Ellis's subsequent discussion in his report included: "It would be recommended that once his psychotic symptoms are better controlled that repeat intelligence measures are undertaken prior to concluding a diagnosis of intellectual disability. Nonetheless it is likely that he has some level of cognitive dysfunction whether or not a formal diagnosis of intellectual disability is made. This should be taken into account in any psychological treatment, vocational training or education provided to him."
I accept Dr Ellis' cautious opinion on the subject. It is a mitigating factor to be taken into account that Mr Connors has a level of cognitive dysfunction and it remains a matter of some significance regardless of whether or not a formal diagnosis of intellectual disability is accepted once symptoms have stabilised.

General matters relevant to the assessment of sentence

Seriousness of the offence

It was indicated during the course of submissions that this was not the type of case in which it was appropriate to make a finding of the level of objective seriousness of the offence by comparison to a scale or a range and no-one demurred to that.
Suffice to say that all cases of homicide are serious crimes because of the fundamental aspect that they involve the unlawful taking of the life of a fellow human being. Here it involved the brutal killing by repeated blows with a hammer of a completely defenceless 55-year-old woman in her own home while asleep in her bed. All of the elements to make out the crime of murder are accepted to be present but Mr Connors' liability is reduced to manslaughter because of his mental condition.
The brutality and inhumanity of the killing is shocking but the circumstances in which it occurred make the case one that is tragic at a number of levels. On one hand, this is a very serious example of homicide, but on the other there are some personal circumstances of the offender that require sentencing to occur with a substantial degree of understanding, moderation and compassion.

Significance of mental illness

I accept that the degree to which Mr Connors' capacity to judge whether his actions were right or wrong and his capacity to control himself were more than substantially impaired by his abnormality of mind arising from his mental illness. Accordingly, there can be no suggestion of double counting in acknowledging the reduction of liability from murder to manslaughter on account of the mental condition and then to also take it into account in the assessment of sentence for the lesser offence.
The authorities are quite clear about how the fact that an offender suffers from a mental illness or intellectual impairment may bear upon the assessment of an appropriate sentence. It is obviously the case that Mr Connors' mental condition was causally related to his offending; it is the very reason he is guilty of manslaughter rather than murder which reflects a lesser moral culpability for what he did.
The need for the sentence that is imposed to reflect elements of denunciation, retribution and general deterrence is significantly reduced. Mr Connors is not a person who should be held up as an example to others of the extreme sanctions the law provides in homicide cases. Personal deterrence is also not a significant matter, particularly given that there is no indication that Mr Connors is a person prone to violence or has the attributes of an antisocial personality disorder. In some cases of an offender with a mental illness there is a concern about them presenting more of a danger to the community but in all of the circumstances that does not seem to be a concern with Mr Connors.
Another way in which an offender's mental condition may bear upon the assessment of sentence is if it renders their custodial experience more onerous because of the conditions under which a sentence is to be served. Here, Mr Connors has been placed in a form of protective custody, initially as a result of a decision made by Corrective Services that he would be at risk in the general prison population because of the nature of his offending. The continuation of this protective custody has been at Mr Connors' request. The result is that he has less contact with other inmates - it does not mean he is held in complete isolation - and he is kept in a single occupancy cell. Sometimes it is assumed that such conditions are more onerous, but there is no evidence in this case that this is so. There is nothing to suggest that the conditions are contrary to Mr Connors' wishes, or that he would prefer some other arrangement that might be available.

Remorse

I accept that Mr Connors loved his mother and their relationship was generally a good one. I also accept that the process of coming to terms with his responsibility for ending her life in such a terrible way is something that he will find exceedingly difficult and probably impossible. The evidence establishes that he is genuinely remorseful.

No record / prospects of rehabilitation / likelihood of reoffending

Mr Connors has no criminal record or any prior interaction with the criminal justice system. Simon Connors told police that his brother "got on fine with mum" and had never been violent towards her. These matters are particularly significant in light of the fact that he had been exhibiting symptoms of mental illness for so many years.
Counsel for Mr Connors placed emphasis in relation to this topic on the last part of what Dr Ellis said as to "prognosis". The complete extract from his final report appears above but for convenience the presently relevant passage is: "The available evidence would suggest that persons who have schizophrenia under forensic mental health care have very low rates of recidivism, compared to persons who have schizophrenia under the sole management of correctional services."
Mr Connors has stated an awareness of the importance of him accepting psychiatric treatment, even if he does not have complete insight into the nature and potential consequences of his condition. I am satisfied that, with the assumptions that he receives the appropriate care that is discussed in the expert reports and that he continues to make progress, slow as it has been to date, he has very good prospects of rehabilitation and of not further offending.

Sentencing statistics and reference to other cases

Counsel for the offender presented an analysis of sentencing statistics and a table of cases of sentencing for manslaughter where there were the features of substantial impairment, a previously undiagnosed mental illness and no criminal history.
The statistics are of no assistance because they include cases of manslaughter by way of an unlawful and dangerous act, criminal negligence, provocation and excessive self-defence as well as where there is a substantial impairment by an abnormality of mind. The table of similar cases is more useful and provides something of a yardstick but I hasten to add that the maximum penalty is the guidepost provided by Parliament and the circumstances of no other case are the same as in the present case.

Reduction for plea of guilty

It was accepted by the Crown that Mr Connors had offered to plead guilty to manslaughter at "the earliest reasonable opportunity" (namely, after the expert reports were to hand). In accordance with accepted sentencing practice there will be a reduction of the sentence that would otherwise have been imposed of 25 per cent.

Special circumstances

Mr Connors will need careful treatment, monitoring and support upon his release from custody for an extended period of time. His needs will be manifold including regular and long-term psychiatric review; monitoring of medication compliance; drug relapse prevention; and general assistance with daily living. Eventually Mr Connors will be returning to the community without the best support he has had during his life; his mother. For these reasons it is appropriate that the non-parole period should be reduced so as to allow for a longer period on parole. I am mindful of the requirement that the non-parole period should represent the minimum period that Mr Connors should remain in custody having regard to all of the circumstances of the case.

Back-dating of sentence

Mr Connors has been in custody since his arrest on 15 May 2017 and so his sentence will be back-dated to then.

Sentence

Convicted. Sentenced to imprisonment comprising a non-parole period of 3 years and a balance of the term of the sentence of 2 years 8 months. The sentence is to date from 15 May 2017. The offender will become eligible for release on parole following the expiry of the non-parole period on 14 May 2020. That is a total sentence of 5 years 8 months. Without the offender's plea of guilty it would have been a sentence of 7 years 6 months. The Registrar is asked to forward to Justice Health and Forensic Mental Health Network a copy of the three reports by Dr Andrew Ellis as well as the reports by Professor David Greenberg and Dr Ilana Hepner.

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: 28 September 2018

Crimes Act 1900(NSW)s 23A

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