R v Hill

The offence

1. The agreed facts of the offence are to the following effect. On the morning of Thursday 3 November 2016, the offender left his residence in Surry Hills and walked north along Crown Street towards Oxford Street. He stopped at an ATM, waited in line, withdrew some money and then continued to Oxford Street, which he crossed against the pedestrian lights before continuing along Crown Street.
2. Mr Hill lived in an apartment on Crown Street, just north of the intersection. He left his building and proceeded to walk south on Crown Street, which involved walking up a slope. As the offender approached Mr Hill, eye-witnesses saw and heard the offender yell at Mr Hill, punch him in the head more than once and then kick him to the upper body. This caused Mr Hill to fall backwards down the slope with considerable force onto the hard surface, resulting in a blunt force injury to the back of his head. It was this injury that caused Mr Hill's death.
3. Passers-by provided first aid to Mr Hill. Police and an ambulance arrived within minutes and he was conveyed to St Vincent's Hospital, where he underwent surgery for a number of skull fractures. He passed away five days later, on 8 November 2016.
4. The offender continued north along Crown Street. According to eye-witnesses, he was yelling and screaming incoherently, walking in a strange manner and looking "crazy" and unkempt. He purchased some groceries at a supermarket and returned home. That afternoon, police attended his residence and arrested him. The offender made a number of admissions. He was taken to Kings Cross police station and took part in a recorded interview, in which he adopted his earlier admissions and gave an expanded version of what had occurred.
5. The offender said that he knew Mr Hill was going to run into him on purpose, that Mr Hill had a plan from the start to disrupt him and that contrary to what eye-witnesses described, Mr Hill initiated the incident by grabbing and shaking him and, paradoxically, that the offender thought he would win the encounter, otherwise he would not have started it.

Victim impact statement

1. A victim impact statement was made by Mr Hill's sister, Christine Jennings. Ms Jennings spoke of her brother's struggles with physical ailments, including, tragically, a brain injury and a detached retina caused by one of many previous assaults he had suffered on the streets of Sydney. Ms Jennings described him as an educated man, well-read and quick-witted. Her loss, and its impact on her daily life, is profound. It has devastated her life, making it a daily struggle to keep going.
2. I take the statement into account pursuant to s 28(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The offender's background

1. The offender is aged 37. He was born in Western Australia. His family moved to Canberra, for reasons to do with his father's work, when he was nine years old. He has a younger brother and older sister. When he was aged 12, his father left the family and moved back to Perth.
2. The offender attended school until the end of Year 12, although he was unsuccessful in his exams for the High School Certificate.
3. When aged 21, the offender committed an armed robbery. He held up a service station attendant, brandishing a hunting knife that he possessed for camping trips. He was handed $271 and demanded some pouches of tobacco. He did not disguise his appearance. Police released CCTV images of the offender and he was arrested three weeks later, following an anonymous tip-off. He made a full confession and pleaded guilty. He was sentenced to three years imprisonment, with a non-parole period of 12 months.
4. Reports prepared for court for that offence yield some background information on the offender up to that point in his life. His mother had moved to the Philippines with a new partner. The offender claimed to have attended studies in contemporary music at the Canberra Institute of Technology for a year and to have worked in a number of casual jobs. At the time of the robbery, he was unemployed and living in assisted accommodation for persons with a disability or in material need. His brother was living in the same accommodation. The offender's Newstart allowance had been reduced because he had failed to comply with Centrelink requirements, and he was without any funds. He owed a court fine of $1,000 for a speeding conviction, which was his only other offence at that time.
5. A pre-sentence report prepared by Corrective Services officers stated that the offender had regularly consumed cannabis since he was aged 18. The authors considered that there was a moderate risk of him re-offending.
6. The offender was also assessed by Dr William Lucas, forensic psychiatrist, who diagnosed him as suffering from schizophrenia, most likely since he was 18, although that condition had not previously been diagnosed. Dr Lucas was of the opinion that the offender used cannabis to make it easier to live with the symptoms of his illness. The offender told Dr Lucas that at the time of the offence, he had been awake for 48 hours and did not have money to buy cannabis, which was apparently a motive for the armed robbery.
7. Dr Lucas concluded: "The history [the offender] gave me indicates his likely diagnosis is of a psychotic disorder, most probably schizophrenia. His symptoms have been present for three years and broadly viewed fit into the classification of hallucinations and there is probably a delusional content. There is evidence on examination of thought disorder. There are hints of social and occupational dysfunction, apart from committing the armed robbery, but these cannot be properly assessed without independent information, most likely from family members. At this stage, Mr Hill's assessment is incomplete and there has been no trial of medication."
8. Dr Lucas recommended that the sentencing of the offender be delayed and that he be transferred to the Mental Health Services section of the Belconnen Remand Centre for further assessment. However, he was sentenced the following day.
9. Six weeks after he was sentenced, the offender escaped from custody, although he subsequently surrendered to the authorities. He was sentenced to 4 months further imprisonment for that offence and to 3 months imprisonment for a break, enter and steal that he committed whilst at large.
10. At the sentence hearing in this matter, evidence was given by Mr Aneurin Griffiths, who has known the offender since they attended primary school together in Canberra. They have remained friends ever since. Mr Griffiths said that after the offender's arrest for the armed robbery, he became aware of the diagnosis of schizophrenia. He visited the offender in prison, both before his escape and after his return to custody.
11. The offender and Mr Griffiths coincidentally both moved to Sydney, and maintained their friendship. Mr Griffiths married and had four children, residing in Redfern. Until the offender's arrest in this matter, Mr Griffiths would invite him to dinner with his family every fortnight or so.
12. At one point, for a few years, the offender lived in Melbourne with his younger brother, in a unit that their mother owned. When living in Sydney, he occasionally had work, sometimes as a delivery truck driver. For several years, he was sleeping rough on the streets and occasionally in facilities for the homeless, such as the Matthew Talbot Hostel in Darlinghurst.
13. Mr Griffiths said that the offender continued to have "mental health issues" which would destabilise his employment; some days he would not turn up to work.

An attempted Mental Health intervention

1. A report dated 24 May 2017 by Dr Jonathon Adams, forensic psychiatrist, who became involved in this matter after the offence, reviewed notes of the Homeless Outreach team of St Vincent's Hospital in respect of the offender. An entry dated 17 September 2015 was to the effect that the offender reported a "risk of snapping if he stayed in the city" and that "people deliberately walk through me on the street though they deny knowing me". He was "still declining medications".
2. An entry for 21 March 2016 referred to the offender's belief of a "worldwide conspiracy against me" and a history of auditory hallucinations, and that he was still declining anti-psychotic medications. There are entries of a similar nature through to 6 October 2016.
3. The agreed facts state that between July and September 2016, the offender informed therapists from the Mental Health Clinic of St Vincent's Hospital that he had thoughts of killing people who had wronged him, that he believed there was an antisocial conspiracy against him by the general public and that people stood in his way on purpose. He admitted to verbally abusing people and having violent outbursts which included damaging property.
4. In July 2016, he was assessed by a psychiatrist at the hospital and at that stage was deemed not to meet the criteria for involuntary treatment under the Mental Health Act 2007 (NSW). It appears that this was the latest in many occasions over his life that, although not formally diagnosed as suffering from schizophrenia, he had been recommended anti-psychotic medication and declined to take it, most likely because of an absence of insight into his mental condition which in itself was consequent to that condition.
5. At the time of the offence the offender was living in shared community housing in Surry Hills.

Post-offence history of the offender

1. Three months after the offence, the offender was assessed in custody by forensic psychiatrist, Dr Jonathon Adams. He noted in a subsequent report dated 8 February 2017 that it was apparent that the offender was experiencing symptoms of psychosis and that he had a persecutory belief system which included elements of grandiosity and conspiracy theories.
2. Dr Adams concluded that the offender had severe symptoms of a major mental illness, likely schizophrenia, with minimal insight. He informed the offender about his concerns about his mental health and suggested that he should consider psychiatric medication and engage with mental health clinicians, but the offender rejected the suggestion. Dr Adams considered that the offender was so affected by his psychotic symptoms as to be unfit to be tried, at that stage.
3. Dr Adams spoke to the Clinical Director of Justice Health and recommended an assessment of the offender. Shortly afterwards, he was transferred to the Long Bay Psychiatric Hospital. Hospital notes indicate that in April 2017, the offender was "reluctantly accepting Olanzapine", which is an anti-psychotic medication used to treat schizophrenia. This appears to be the first time the offender had ever been medicated for his mental illness. The notes trace an improvement in the offender's symptoms until June 2017, when he was discharged from the hospital to a prison mental health accommodation area.
4. Dr Adams reviewed the offender in August 2017. He noted an improvement in the offender's mental state, although he still lacked insight. Dr Adams confirmed his diagnosis of schizophrenia and was of the opinion that, while the offender continued to suffer delusional beliefs with persecutory concerns and grandiose features, they were sufficiently reduced that he was now fit to be tried, provided he continued to take antipsychotic medication.
5. Dr Adams next reviewed the offender on 28 February 2018, at the request of the offender's solicitor; his mental illness had relapsed. His delusional beliefs were more intense than they had been in August 2017 and as a result he had been transferred to a Mental Health Screening Unit two days prior. Dr Adams considered he was no longer fit to be tried.
6. Four weeks later, on 27 March 2018, the offender was assessed by a psychiatrist retained by the Crown, Dr Adam Martin, who provided a report dated 12 April 2018. Dr Martin's diagnosis was paranoid schizophrenia. He considered that whether the offender was fit to stand trial was "borderline". A deterioration in his mental state: "... might again lead him to again become paranoid, hallucinated or thought disordered, affecting his ability to communicate, distracting him and impacting on his thought processes around the alleged index offending, and consequently impacting on his ability to participate in the trial."
7. Dr Adams next reviewed the offender on 20 September 2018, six months after Dr Martin's assessment, and provided another report dated 5 October 2018. In the intervening period, the offender had been returned to Long Bay Psychiatric Hospital for a period of three months. He had been prescribed stronger anti-psychotic medication, but continued to believe that he did not have a mental illness and therefore did not require medication. The offender's mental health had sufficiently improved, however, that in Dr Adams' opinion, he was again fit to be tried.
8. In this report, for the first time, Dr Adams considered the offender's mental state in terms of the offence, in particular, whether he had available to him any defence involving a mental abnormality. Dr Adams considered that the complete defence of mental illness was available, should the offender desire to advance it at his trial, as well as the partial defence of manslaughter by substantial impairment.
9. Dr Martin also reviewed the offender at this time. In his report dated 19 November 2018, he also concluded that, in his opinion, the offender had available to him the complete defence of mental illness, as well as the partial defence of manslaughter by substantial impairment.
10. In Dr Adams' final report, dated 15 April 2019, he responded to questions concerning the offender's prognosis. Dr Adams was of the opinion that the offender continued to have minimal insight into his mental illness, which he elaborated in these terms: "… Insight is a psychiatric term that encompasses various areas, including someone's understanding of their diagnosis, their understanding of the pathological basis of their symptoms, how their symptomology relates to problematic behaviour, and their understanding of the effectiveness and benefits of compliance with all facets of treatment."

The elements of the offence

1. The partial defence of manslaughter on the basis of a substantial impairment is made available by statute. Section 23A(1) of the Crimes Act 1900 (NSW) relevantly provides: "23A Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter."
2. For the purposes of the section, a mental illness, including schizophrenia, qualifies as an abnormality of the mind.
3. Both Dr Adams and Dr Martin had the benefit of watching the video-recorded interview of the offender that was conducted on the day of the offence. Many of the offender's answers were quite bizarre and exhibited a high degree of paranoid thinking about Mr Hill. Each found the offender's explanations of his actions, and the insight it gave into his thinking processes and opinions generally, relevant to their determination of the impact of his symptoms of schizophrenia on his decision to attack Mr Hill. Although only one of the three elements set out at s 23A(1)(a) is necessary for that aspect of the partial defence to be established, both Drs Martin and Adams considered that the offender's symptoms impacted on all three elements, namely, his capacity to understand events, to judge whether his actions were right or wrong and to control himself.
4. Indeed, as I have already indicated, they were also both of the opinion that the offender had available to him the complete defence of mental illness, namely, that at the relevant time, due to his mental illness, he did not appreciate that what he did was morally wrong. While a forensic psychiatrist's opinion is not determinative of that issue (it remains a matter for the court to determine, if it is advanced), it is relevant to the extent that it indicates the extent to which the offender's capacity for criminal culpability was absent, in the opinion of both psychiatrists.

Sentencing considerations

1. The unlawful taking of another person's life is, by its nature, a serious offence. Mr Hill was a middle-aged man who lost his life to an unprovoked, violent attack by a stranger some twenty years younger, on a public footpath in the inner city.
2. In determining objective seriousness, it is appropriate to have regard to relevant personal factors. In Tepania v R [2018] NSWCCA 247, Johnson J (Payne JA and Simpson AJA agreeing) said, at [112]: "In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment." See also GC v R [2018] NSWCCA 280 at [60]-[62].
3. In this case, there is a causal connection between the offence and the offender's mental illness, which directly impacted on his moral culpability, as noted by both Drs Adams and Martin, whose evidence I accept. In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, the Court said, at [54]: "The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community." (footnotes omitted)
4. Although in all cases of manslaughter by substantial impairment, by definition, there is a causal link between the offender's mental disorder and his or her actions causing death, it is nevertheless relevant to consider, for the purpose of fixing the appropriate sentence in a particular case, the evidence as to the extent to which the mental disorder impaired the offender's responsibility: R v Keceski (Court of Criminal Appeal (NSW), 10 August 1993, unrep). The fact that both forensic psychiatrists found that, in their opinion, all three elements of s 23A(1)(a) were made out, to the extent that the offender had a sufficient forensic basis to submit a defence of mental illness, is relevant to that exercise. However, its mitigatory effect is limited by the fact that a conviction of the offence of manslaughter by substantial impairment involves an acceptance of a significant degree of criminal responsibility; it is not a complete exoneration.
5. The Crown accepts that the offender's intent was not to kill Mr Hill, but nevertheless to cause him serious bodily harm. In the circumstances of this case, this is also a factor relevant to the determination of objective seriousness: see, in respect of the offence of murder, R v Wilson (2005) 153 A Crim R 257; [2005] NSWCCA 112.
6. The passage from Muldrock, quoted above, makes clear that the elements of retribution and denunciation are often either inappropriate or less relevant when sentencing offenders suffering from a mental impairment, as is general deterrence: Muldrock at [53].
7. It is apparent from the offender's accounts to police and the forensic psychiatrists that he has little or no remorse for his actions. This is to be understood in the context of his continuing disordered and paranoid thinking, attributable in turn to his mental illness.
8. As to the offender's criminal record, I have referred to the armed robbery in 2003, the escape custody and the break, enter and steal offences, all later in the same year. He was also charged in 2016 with possess prohibited drug, in respect of a small quantity of cannabis that was in his possession when he was arrested for this offence, for which he received a bond pursuant to s 10A of the Crimes (Sentencing Procedure) Act.
9. As to personal deterrence, the offender has a prior offence of violence, namely the armed robbery in 2003, although no physical violence was perpetrated. Also relevant are his candid admissions to the St Vincent's mental health team in the year or so prior to the offence that he was having thoughts of perpetrating violence and the evidence that he was acting violently. Again, this element is tempered by his mental illness and its direct relationship with his urges to violence. This nexus is demonstrated by the offender's disclosures to Dr Adams during his assessment in August 2017, that, following his commencement on anti-psychotic medication, he did not have ideas of harming others.
10. The offender's inclination to thoughts of violence when his mental illness is not managed by medication is relevant to two other linked sentencing purposes, the protection of the community and rehabilitation. While the offender's mental illness is beyond his control, his absence of insight contributes to his failure to manage it by medication and accepting professional advice, thereby potentially further endangering the community. It is relevant to the sentencing exercise, although consideration of that factor cannot lead to the imposition of a more severe penalty than would have been imposed, if the offender had not been suffering from a mental abnormality: Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477.

Prospects of rehabilitation

1. In his most recent report, dated 15 April 2019, Dr Adams summarised the aspects of the offender's profile that need to be addressed: "Considering [the offender's] longer-term rehabilitation needs, there are a variety of areas that will need to be addressed. These include his persisting symptoms of schizophrenia (predominately negative symptomology); drug and alcohol rehabilitation; psychoeducation; avoidance of problematic behaviour via psychological techniques; and various social management strategies."
2. Dr Martin agreed with the contents of Dr Adams' report.
3. In terms of the offender's prospects of rehabilitation, the offender is fortunate to have the friendship of Mr Griffiths and his family. Other than this friendship, it appears that the offender has few community ties. His two siblings live interstate and, as with his parents, appear to have little to do with him. Mr Griffiths gave evidence that he intends to continue to visit the offender and provide whatever services he can to help, including assisting him to find accommodation and employment when he is eventually released from prison. To that end, Mr Griffiths has received some background assistance from Justice Health on how to provide services to his friend. He gave evidence that, following the eventual release of the offender, if he notices a deterioration in the offender's mental state or a departure from his conditions of release, he would contact the relevant agencies. Mr Griffiths said that "over the past several months" the offender has told him that he thinks his medication has been helpful and that he intends to continue to take it.
4. In his latest report, Dr Adams concluded that: "… the likelihood of [the offender] reoffending will be dependent upon his mental state, his engagement with appropriate management strategies, the management plan, and his placement." I take this to mean the nature of the offender's eventual placement back in the community, in terms of support.

More onerous conditions in custody

1. Dr Adams also considered that the offender's time in custody is more onerous compared to an inmate without a major mental illness, which is a relevant factor to be taken into account on sentence. This was not disputed by the Crown. Although there has been some progress in the management of his mental illness, at the time of the offender's sentence hearing, which was on 10 May 2019, he was again being held in Long Bay Psychiatric Hospital, consistent with it continuing to be a major issue.

Plea of guilty

1. The defence submits that a reduction of the sentence by 25 per cent is appropriate for the plea of guilty, although it was not made until after committal, which was on 28 November 2017. On 24 August 2017, the defence wrote to the Crown, offering to plead guilty to an offence pursuant to s 25A(1) of the Crimes Act 1900, namely, assault causing death, which has a maximum penalty of twenty years. The offer was rejected, but discussions between the parties ensued. By email dated 24 November 2017, that is, four days before committal, the defence said that its offer to plead to either manslaughter or an offence pursuant to s 25A(1) remained open, apparently referring to oral discussions between the parties, although no written offer to plead guilty to manslaughter had been made. The email did not indicate what basis of manslaughter was proposed. A written offer to the Crown to plead guilty to manslaughter by substantial impairment was forwarded on 19 November 2018.
2. The Crown submits that the absence of a written offer to plead guilty to manslaughter by substantial impairment prior to committal precludes the offender having the benefit of a 25 per cent reduction, although a lesser ratio is appropriate.
3. I will allow the full 25 per cent reduction of sentence for the plea of guilty. It was not open to the defence to make an offer to plead guilty to manslaughter by substantial impairment unless it had a forensic opinion to the effect that it was available. The defence did not have that, until the report of Dr Adams dated 5 October 2018, which was five weeks before the offer was made. Although Dr Adams had first assessed the offender in February 2017, he was of the opinion that he could not obtain a history from the offender so as to consider possible defences at that stage, because of the untreated, and later unresponsive, nature of the offender's mental illness. Allowing time for the defence to consider the report and obtain instructions from a client who had a mental illness, I consider the offer was made at the first opportunity: R v Wilson at [26].

Special circumstances

1. The Crown has submitted that a finding of special circumstances is appropriate. The bases advanced in support of this proposed finding are the offender's history of non-compliance with medical advice and medication concerning the management of his mental illness, as well as his limited community ties and social vulnerability. Together, they warrant a longer period of parole than the usual ratio would otherwise provide, when he is eventually released back into the community.
2. I accept that the offender's lack of insight into his mental illness, with his attendant reluctance to accept medical advice and take anti-psychotic medication, given its central relevance to his potential for further criminal behaviour, constitute special circumstances warranting a variation of the statutory ratio between the sentence and the NPP.

A recommendation

1. Counsel for the offender has submitted that it is appropriate for the Court to make a recommendation to the Department of Corrective Services concerning the offender's current place of treatment and the type of accommodation that would be appropriate following his release. As would be apparent from the offender's history, there have been lost opportunities to diagnose and appropriately treat his mental illness, dating back to Dr Lucas' recommendation in 2003 for a further assessment of the offender and the trial of anti-psychotic medication.
2. It is also concerning that, following his arrest and detention on remand, the offender's mental illness was not detected until three months later, when Dr Adams drew it to the attention of Justice Health. Clearly the offender will require considerable support by government agencies when he is ultimately released back into the community.
3. Rather than make the recommendation sought, I recommend instead that the reports of Drs Adams and Martin be forwarded to Justice Health and the State Parole Authority for their consideration in respect of the place of the offender's current custody and the nature of his placement in the community, when released.
4. The offender has been in custody since 3 November 2016 and his sentence will be backdated to that date.

Sentence

1. I order that the offender be sentenced to imprisonment comprising a non-parole period of 5 years 6 months and a balance of term of 2 years 6 months. The sentence is to date from 3 November 2016. The offender will become eligible for release on parole following the expiry of the non-parole period on 2 May 2022.
2. That is a total sentence of 8 years. Without the offender's plea of guilty, it would have been a sentence of 10 years 8 months.
3. The Registrar is asked to forward to Justice Health and the State Parole Authority a copy of the four reports of Dr Jonathon Adams and the two reports of Dr Adam Martin.

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: 21 June 2019