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[2009] NSWSC 956
defendant. Sentenced to imprisonment with a non-parole period of six years (commencing 3 January 2008 and expiring 2 January 2014) and an additional balance term of four years, effective head sentence ten...
The judge acquitted Ms Hevesi-Nagy of murder but convicted her of manslaughter because psychiatric evidence showed she was substantially impaired in her capacity for self-control by a delusional persecutory disorder at the time she killed John McCann. The Court found that planning and preparation for the killing occurred when that condition was not operating, that the killing was carried out in company and brutally, and that the defendant made no attempt to assist the victim. Balancing aggravating and mitigating factors (including age, no prior convictions, guilty plea and good behaviour in custody), the judge imposed an effective sentence of 10 years imprisonment with a six-year non-parole period, backdated to the date of custody.
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1,860 words · generated 01/07/2026
This is the sentencing judgment in R v Hevesi-Nagy decided by Michael Grove J on 11 September 2009. The offender, Augusta Hevesi-Nagy, after a judge-alone trial, was found not guilty of murder but guilty of manslaughter for the killing of John McCann (see [1]). The factual sequence accepted by the Court is summarised at [8]–[11]. Ms Hevesi-Nagy and her fourteen-year-old son visited the victim’s home (ostensibly to pick up a parrot), slept there, and in the early hours of the morning both attacked the sleeping victim: the offender struck with a tomahawk, the son with a knife, and the victim died from a stab wound to a vital artery. The assailants locked a door to prevent retaliation and escaped through a window. They made no attempt to summon or give assistance; the body was later found by a family member (see [10]–[11]).
No linked legislation citations have been extracted yet.
At trial the judge accepted psychiatric evidence that, at the time of the killing, the offender suffered a delusional persecutory disorder which substantially impaired her capacity for self-control, but did not impair her capacity to understand events or to judge right from wrong (see [2]–[5], [14], [15]). Accordingly the partial defence under the statutory scheme reduced the charge from murder to manslaughter. On sentencing, the judge identified multiple aggravating and mitigating features and imposed an effective head sentence of ten years imprisonment, with a non-parole period of six years, backdated to the date of custody (see [24]–[25]).
The decision rests on two linked strands: first the application of the statutory partial defence (substantial impairment arising from an abnormality of mind), and second the sentencing exercise balancing culpability and mitigation.
Partial defence and psychiatric evidence:
Timing of impairment and culpability:
Sentencing balancing exercise:
Within the text of this judgment the statutory framework for the partial defence is treated as operative and authoritative. The Court applied that legislative test in a fact-sensitive way, emphasising that the partial defence can be limited to one relevant capacity (here self-control) rather than requiring impairment across all capacities (see [2]–[3]). The judgment therefore reinforces two points in the jurisprudential approach to diminished responsibility style defences in the Australian context:
The judgment does not cite or apply other reported authorities within the text provided. It therefore operates principally as a fact-specific application and sentencing instance rather than reformulating or overturning existing doctrinal rules. Practitioners should regard it as an illustration of how a trial judge may accept a partial but targeted psychiatric finding and then carefully weigh preparatory conduct when assessing mitigation.
[2]: "Parliament has explicitly made law that culpability for what otherwise would be murder is reduced to manslaughter if the perpetrator ... is substantially impaired by an abnormality of mind ... affecting ... capacity ... to control himself or herself."
[3]: "I stress that my finding ... is limited to ... impairment of self control and not an impairment of either understanding or judgment of right or wrong."
[12]: "Both you and your son joined in the attack ... You engaged in planning over an extended period."
[14]: "You went to the house for the specific purpose of killing ... the impairment did not extend to your capacity to understand events or to distinguish right from wrong."
[23]: "Although the impairment ... diminished your responsibility, the objective seriousness of what you did is not to be ignored. You are guilty of the felonious taking of human life with an intent to kill."
[25]: Sentence details.
This decision is relevant when:
Practitioners advancing a partial-defence argument should ensure psychiatric evidence is precise about which capacities are affected and when the impairment was operative, because this decision shows the court will parse timing and the breadth of impairment closely (see [2]–[5], [12], [14], [15]).
The judgment itself contains no discussion of subsequent or prior appellate treatment; no cases are cited in the text provided. Consequently the judgment stands as a single-trial-court application of the statutory partial-defence in these facts and as a sentencing example. For guidance on how later courts have treated R v Hevesi-Nagy, practitioners should consult reported appellate decisions and electronic databases to identify any citation history. This judgment may be cited in later sentencing or partial-defence contexts as persuasive on:
Because no appellate authority is recorded in the text provided, its precedential weight will depend on whether appellate courts have subsequently considered and endorsed or distinguished its reasoning.
Several practical and doctrinal questions remain open or are only partially answered by this judgment:
Conclusion: R v Hevesi-Nagy is a tightly reasoned instance of applying the statutory partial-defence to a finding of delusional disorder substantially impairing self-control. Its principal practical teachings are the need for precise expert evidence on which capacities were impaired and when the impairment operated, and the continuing sentencing significance of planning and preparatory acts undertaken outside the impairment.
CITATION : R v Hevesi-Nagy [2009] NSWSC 956
HEARING DATE(S) : 13,15,16,17,20,21,23,27 July 2009
DECISION : Offender sentenced for manslaughter
CATCHWORDS : CRIMINAL LAW AND PROCEDURE - Manslaughter - Sentence on particular facts
PARTIES : REGINA - Crown Augusta HEVESI-NAGY - Offender
C Maxwell QC - Crown COUNSEL : (1) A Webb SC - Offender (2) J Spencer
Director of Public Prosecutions - Crown SOLICITORS : (1) Legal Aid Commission - Offender (2) George Sten & Co
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST
1 HIS HONOUR: Augusta Hevesi-Nagy, following trial without a jury I found you not guilty of murder but guilty of the manslaughter of John McCann. On 3 August last I gave reasons for that verdict and I will not repeat them and they may be taken as incorporated in these remarks. At the time I observed that, upon arraignment, you pleaded guilty to manslaughter but the Crown declined to accept that plea in discharge of the indictment. In the light of the evidence, I comment that the stance of the Crown was understandable but I will take into account your offer to plead guilty to the offence of which you were ultimately convicted. 2 At the sentence hearing, a daughter and a son of the deceased read victim impact statements and I acknowledge the receipt of them. It is appreciated that these statements do not constitute evidence but I have legislative authority to comment. I did not fail to observe the distress of the family members in that a verdict of manslaughter rather than murder was found. I seek to invite in them an understanding that the law does not impose culpability which is exclusively based upon the objective facts and circumstances of a killing and Parliament has explicitly made law that culpability for what otherwise would be murder is reduced to manslaughter if the perpetrator of the killing is, at the time, substantially impaired by an abnormality of mind arising from an underlying condition which affects either the capacity to understand events, or to judge whether actions are right or wrong, or to control himself or herself. In this regard the Court needs the guidance of experts and necessary psychiatric evidence was tendered. 3 I stress that my finding in this case is limited to only one of the alternatives, namely, an impairment of self control and not an impairment of either understanding or judgment of right or wrong. 4 Although there is a legislative inhibition on admissibility of whether impairment is substantial, there was expression in the material put before the Court by consent from Dr Wilcox when she was called by the Crown. Her evidence precisely postulated the finding which I have made which limited the relevant factor of substantial impairment to self control. Evidence tendered by the defence, some of which I rejected, asserted a much broader impairment. 5 I am acutely conscious that these observations may offer little comfort to the family in their grief but they should be assured that their feelings are not unrecognized. Nevertheless, the verdict necessarily needed to be based upon an application of the law to the evidence including the evidence of the experts concerning any diminution in the mental responsibility of the perpetrator. 6 Finally, in comment on the statements, I would repeat, as I expressed in the reasons for verdict, that I was not satisfied that John McCann misconducted himself in the way alleged by his son or by you, the offender currently before the Court. 7 I described the events surrounding the killing and immediately thereafter in the earlier reasons. 8 In brief, equipped with tomahawk and knives you and your, and his, fourteen year old son paid a visit to the victim's home on his invitation for the ostensible purpose of picking up a pet parrot. 9 John McCann made you welcome. Despite attempts to induce him to sleep soundly, it was late at night before he retired to his bed and you and the child went to sleep on a lounge. In the early hours of the morning both of you awoke. 10 You attacked the sleeping victim, you striking with the tomahawk and the child striking with a knife. Each of you contributed injuries to him as you carried out the joint attack. The actual cause of death was a stab wound to a vital artery. However, the attack was not immediately fatal and the victim tried to retaliate. By locking a door you and the child were able to avoid this and to escape by fleeing through a window. Subsequent events have been described in the judgment on the trial of the indictment. 11 You made no attempt to obtain or send assistance to the victim and the deceased's body was found by a family member who had become disturbed by the absence of response to her efforts to make contact. 12 There are some features of the killing and the antecedent events which operate as factors of aggravation. Both you and your son joined in the attack so that the offence was committed in company. You engaged in planning over an extended period. Not only did you engage in discussion about your intention but you went to the store to arm yourself with a weapon for the purpose of killing, first acquiring a hammer which you rejected for the purpose and later acquiring the tomahawk which you eventually used. This was not a crime committed in the heat of a passion which had been inflamed by some contemporaneous event, it was the culmination of a calculated intent. 13 You came to the house in Schofields equipped with non prescription drugs which you administered to the victim in a drink. You claimed that your purpose was to minimize his suffering. I consider the probability is that that administration was meant to reduce his capacity to resist but I am unable to be satisfied of that circumstance beyond reasonable doubt. I am, however, on the other hand, not satisfied of the probability of your claimed benign purpose and I do not weigh it as a matter of mitigation. 14 You went to the house for the specific purpose of killing. Whilst I have found, in harmony with Dr Wilcox's opinion, that at the time of the killing a delusional disorder of a persecutory nature substantially impaired your capacity for self control, I am satisfied that that condition was not relevantly operating at the times when you were making the preparations over the preceding weeks and months to carry it out. As I have said, the impairment did not extend to your capacity to understand events or to distinguish right from wrong. 15 It is important to observe, and I so find, that the partial defence has been sustained because of a substantial impairment of capacity for self control and not the extinguishment of that capacity. 16 As I understood Dr Wilcox's evidence the diagnosed disorder, manifest in your harbouring of persecutory delusions, may have coordinated with some of those harboured by your mentally ill son. In the judgment on the indictment I mentioned the likely recognition by John McCann of the need of the boy for special care. It has been more than unfortunate, indeed I would say disastrous, that you developed what psychiatrists labelled an enmeshed relationship. Your obvious obsession with excluding his father from normal relationship and your seeking to inspire and encourage an unjustified and misguided hatred in the child are background circumstances which do not operate to mitigate your culpability. 17 It is interesting to note in a reference, which was actually tendered on your behalf, that there is a description of your locking the door of your residence in order to deny the boy's father a court ordered access. Although the author of the testimonial seems to offer this information to demonstrate your great anxiety and emotional and mental stress, what is shown is that in the pursuit of your obsession you were prepared to go to the length of defying a court order. 18 It is convenient to observe at this point that I have gained little assistance from the references tendered on your behalf. Although I infer that the various referees are aware of why you are in custody, their views seem to be skewed by acceptance of various lies and exaggerations which you promulgated about John McCann. In contrast to your conduct, I repeat, that I consider it very likely that he recognized the need of the child for special attention for what we now know was a serious mental illness. Despite your obstructionism, he persisted in seeking access and genuine interest in promoting the boy's welfare was assessed by qualified persons investigating that welfare. 19 There are factors which I take into account in your favour. You are fifty two years of age and have no prior convictions. As abovementioned you offered a plea of guilty to the offence of which you were ultimately convicted. In custody to date you have been assessed as a hardworking inmate with a good attitude. Your punctuality has been observed. I assess your prospects of rehabilitation as good. 20 I accept the submission by your counsel that, on the probabilities, you do not pose a risk of future dangerousness. In so concluding, I bear in mind that it appears that the victim was the exclusive subject of your obsession, although of course, he became the focus of your homicidal intent. 21 It was further submitted that there was little need for personal deterrence, the unspoken truth being that you had achieved your aim of removing Mr McCann from the life of his son. It was also submitted in effect that, by reason of your mental state, neither were you a suitable vehicle for manifestation for general deterrence. The objectives of sentencing do not consist of factors viewed in isolation. Denunciation and general deterrence have some ingredients of commonality. Of course it is well established that persons suffering from mental illnesses may not be suitable vehicles for general deterrence. Your relevant impairment operated at the time of killing but not at all times and in all circumstances which culminated in it. You knew that what you planned was wrong and you knew it was wrong at the time you carried it out. Your culpability was diminished because your self control was substantially impaired, not, as I said earlier, extinguished. I do not regard personal and general deterrence as factors to be entirely ignored in sentence assessment but the weight to be given to them will reflect the matters of mitigation raised in the submissions. 22 You engaged in a planned killing which you carried out in a brutal way. Your claim that it was your fourteen year old son who suggested that it take place, if true, would not reduce your culpability. 23 As discussed in an exchange with counsel, the verdict which I found necessarily involved your impairment reaching a threshold of being categorized as substantial. Nevertheless you bear significant responsibility for the killing. You were not impaired in your capacity to understand the events which were taking place, nor in judging that what you were engaged in was wrong. A claim to police at one part of an interview that your intention was of lesser seriousness I reject and I am satisfied to the necessary standard that your intention was to kill John McCann. Although the impairment which I have found diminished your responsibility, the objective seriousness of what you did is not to be ignored. You are guilty of the felonious taking of human life with an intent to kill. Although the word felony has been removed by law reform activity from the technical description of criminality it still conveys an apt description of a level of seriousness of your crime. 24 No submission was made that I should find special circumstances for the purpose of division of term into non-parole period and balance more favourably to you than in the formula in the applicable legislation. Despite that absence, I conclude that I should make some adjustment in your favour having regard to your age, your general physical and mental health and the likely effect upon you of incarceration. You have been in custody since arrest on 3 January 2008 and your sentence will commence on that date. 25 Augusta Hevesi-Nagy, for the manslaughter of John McCann you are sentenced to imprisonment consisting of a non-parole period of six years commencing on 3 January 2008 and expiring on 2 January 2014 with a balance term of four years commencing on 3 January 2014. This constitutes an effective head sentence of ten years imprisonment. The earliest date of eligibility for consideration of release to parole is specified as 2 January 2014. **********
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R
Hevesi-Nagy
Sentenced to imprisonment with a non-parole period of six years (commencing 3 January 2008 and expiring 2 January 2014) and an additional balance term of four years, effective head sentence ten years imprisonment; earliest eligibility for parole consideration 2 January 2014 (see [24]–[25]).