R v Navin [2016] ACTSC 109

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - offences against the person - murder - jury trial - defence of mental impairment - defence of diminished responsibility - not guilty of murder - guilty of manslaughter by reason of diminished responsibility - extent moral culpability diminished - assessment of mental illness - comparable authorities - sentenced to terms of imprisonment.

Crimes (Sentencing) Act 2005 (ACT), s 7

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1

Mason-Stuart v The Queen [1993] SASC 4322; (1993) 61 SASR 204

Monfries v The Queen [2014] ACTCA 46

R v Singh (1999) ACTSC 66

R v Tsiaras [1996] VicRp 26; (1996) 1 VR 398

R v Verdins [2007] VSCA 102; (2007) 16 VR 269

1. Christopher Navin, on 11 December 2015, a jury found you guilty of manslaughter of Nicholas Sofer Schreiber on 26 December 2013. It now falls to me to pass sentence upon you for this offence.

2. The evidence established that you and Mr Sofer Schreiber had been friends for a number of years before 26 December 2013. You both shared an interest in punk music. You were both part of a circle of friends who had similar interests. In or about January 2012, you moved into Mr Sofer Schreiber's home in Lyneham as a housemate. The evidence established that the two of you generally had a good relationship while you were living together, but there were minor arguments or disagreements of the sort which commonly occur in the context of group housing.

3. In or about May 2013, you left Mr Sofer Schreiber's house and went to live with another one of your friends, David Willis. It is fair to say that your relationship with the deceased had deteriorated somewhat by this time, but I will refer to this in greater detail later. You do not dispute the fact that on the evening of 26 December 2013, you went to the home of the deceased, and at that time, you were in possession of two knives. After apparently being allowed to enter the premises by Mr Sofer Schreiber, you stabbed him some 73 times, causing his death. You then left the premises and later that evening drove to northern New South Wales, where you stayed on a property that you had inherited from your grandfather.

4. You took with you the knives which you had used to kill Mr Sofer Schreiber, as well as the tent that the deceased had purchased earlier that day. At the northern New South Wales property, you set up a camp using the tent that you had taken from the deceased's home. You burned, in a camp fire, the knives that you had used to kill the deceased and threw the blades into a nearby dam on the property where they were later found by police. You took the boots that you were wearing when you killed the deceased to the property where they were later seized by police.

5. The Crown case originally was that in addition to the two knives which you used to stab the deceased, you also used a third weapon implemented to inflict minor injuries upon him. Initially, the Crown theory was that you used an electrical discharge device, such as a taser, to disable the deceased before killing him. The evidence in support of such a proposition was extremely weak, such that the Crown had to abandon partway through the trial the proposition that an electrical discharge device had been used. I am not satisfied that any such third weapon was used by you.

6. You were originally charged with the murder of Mr Sofer Schreiber to which charge you raised defences of mental impairment and diminished responsibility. The jury's verdict means that they were not satisfied on the balance of probabilities that at the time you killed Mr Sofer Schreiber you were suffering from a mental impairment such that you did not know the nature or quality of your conduct, or that your conduct was wrong, or that you could not control your conduct. The defence of mental impairment was not made out. In finding you guilty of manslaughter, the jury was clearly satisfied that the defence of diminished responsibility was made out. The jury's verdict means that they were satisfied that at the time that you killed Mr Sofer Schreiber, you were suffering from an abnormality of mind which substantially impaired your mental responsibility for your acts.

7. The legislature has provided for the defences of mental impairment and diminished responsibility because it recognises, representing the community, that people who suffer from mental illness, mental impairment or mental abnormality may not have the same moral culpability or responsibility for their actions as a person without such a condition. A fair and just criminal justice system does not determine to punish people or determine the extent to which they will be punished based solely on the outcome of conduct. We do not, for example, punish someone whose acts have led to the death of another if that death was entirely accidental and unforeseen.

8. When punishing offenders, courts seek to identify the level of moral culpability of an offender and determine the appropriate measure of punishment in part based upon the offender's culpability. In circumstances where a defence of mental impairment is made out, the moral culpability of the offender is so reduced that the community does not seek to impose punishment, and the courts are empowered to make orders directed towards treatment of the offender and protection of the community.

9. These principles are of significance in this case because the jury's verdict means that they were satisfied that at the time that you killed Mr Sofer Schreiber, you were suffering from an abnormality of mind which substantially affected your moral culpability. In order to impose a just and appropriate sentence, as I am required to do by s 7 of the Crime (Sentencing) Act 2005 (ACT), I must assess the extent to which your moral culpability for your actions was diminished by your mental illness. This requires an examination of the evidence and, in particular, the evidence relating to your mental state at the time. I will return to that in a moment.

10. The offence of manslaughter carries a maximum term of imprisonment of 20 years, clearly indicating the seriousness with which the legislature views such offences which, of course, involve the loss of human life. No penalty which I may impose can equate to the loss of the life of Mr Sofer Schreiber, nor is it intended to. As a civilised community, we do not demand an eye for an eye. We seek to punish based on individual culpability. It is important to remember this principle when sentencing for the offence of manslaughter. Death is the common consequence of victims of murder and manslaughter, but the legislature has prescribed differing maximum penalties for these offences based on the differing moral culpability involved in each offence. Within the offence of manslaughter itself, there will be wide variations between the level of moral culpability of offenders. The offence of manslaughter covers a wide variety of circumstances and as such, no tariff or usual penalty may be identified for the offence.

11. It must, however, not be forgotten that it is always a serious offence involving the unlawful taking of a life. In the present case, there was a deliberate and voluntary killing with an intention to kill. Were it not for your mental illness, this would have been a clear case of murder, calling for a very lengthy term of imprisonment. I have undertaken a comprehensive review of the evidence led at your trial and at the sentence hearing. This was necessary because of the Crown's submission, that I either must or should reject the account that you gave of your mental health on 26 December 2013 when you spoke to psychiatrists and other health professionals in February 2014 and thereafter.

12. Your account of your mental state as at 26 December 2013, as given to three psychiatrists, Prof Mullen, Dr Allnutt and Prof Greenberg, was one of you suffering delusions to the effect that your life and the lives of your family were threatened by an unknown group of observers who could read your mind. You also reported auditory hallucinations consisting of voices giving you commands. You reported a belief that the deceased was part of a conspiracy of the observers to harm you and your family, and that he was going to kill you and your family. You believed that he had already hired a hitman who had killed your grandfather. In that context, you said you determined to kill the deceased.

13. Both Prof Mullen and Dr Allnutt were of the opinion that you were suffering from schizophrenia at the time that you killed the deceased. Prof Mullen was of the opinion that the nature of the gross disturbances of your state of mind at the time of the killing deprived you of the knowledge that your actions were wrong and would have severely compromised and possibly deprived you of the ability to control your actions. Dr Allnutt also formed the opinion that you were psychotic at the time that you killed the deceased. Both of the psychiatrists considered on the balance of probability that your level of mental impairment at the time that you killed the deceased was such as to afford you a defence of mental impairment.

14. The onus was on you to establish the defence of mental impairment on the balance of probabilities, and the verdict of the jury means that they were not so satisfied. The jury's verdict means, however, that they were satisfied that on 26 December 2013 you were suffering from a mental illness which substantially impaired your mental responsibility for killing the deceased. The question is, how substantial was that impairment? I am satisfied that your level of mental illness at the time that you killed Mr Sofer Schreiber was closer to one that would afford a defence of mental impairment than it was to normality. I have formed that conclusion on a number of bases, which I will now refer to.

Consideration of the offender's mental illness

15. First, it is consistent with your mental health history. There is no dispute that you suffer from paranoid schizophrenia. There can also be no doubt that at the time of your admission to Coffs Harbour Hospital in August 2011 you were psychotic as a result of the onset of symptoms of schizophrenia. You were, incorrectly but understandably, misdiagnosed at that time as suffering from depression with psychotic features.

16. It is important to note that there were similar features to your presentation and actions leading up to August 2011 to those which were present in the weeks and months leading up to 26 December 2013. In particular, in 2011 you engaged in bizarre flight behaviour, hiding in the bush for a period and then fleeing impulsively to Tasmania and the United States of America. When you returned from the United States of America your mother persuaded you to live with your father in Coffs Harbour, where you were subsequently hospitalised for nearly two months. You exhibited similar behaviour in August 2013, when you impulsively flew to the United States of America and remained for only a very short period of time. This occurred not long after the death of your grandfather and in circumstances where you had ceased taking your prescription medication. I note that in May of 2013, you were refused entry to the United Kingdom (UK) after a spontaneous trip.

17. At the time that you were released from hospital in Coffs Harbour you were medicated with an antidepressant and an antipsychotic. I am satisfied that you did not take your medication regularly in the period from your release from hospital until you had killed the deceased on 26 December 2013. There is credible evidence that you ceased using your prescription medication in late 2013. On 19 August 2013, you were seen by Nikki O'Dwyer, a psychologist employed by ACT Mental Health. She noted that you appeared to be low in mood, made little eye contact, and had a blunted affect. You told her that you had ceased taking your medication. You saw her again on 27 August 2013, at which time you appeared distracted. You would not confide in her about your thoughts.

18. Joel Thrower gave evidence that on 9 December 2013, at O'Neill's Pub in Dickson, you told him about an ABC documentary that you had viewed concerning medication, and you said that as a result of watching that documentary you had ceased taking your medication about one week earlier. Another witness, Ryan Smith, said that about four weeks prior to 24 December 2013, you told him that you had ceased using your medication. It is of course important to note that all of those statements were made by you at a time when you had no motive to lie.

19. All of the psychiatrists who gave evidence at your trial and at the sentence hearing considered that it was significant that you had ceased taking your prescription medication in the weeks or months leading up to you killing the deceased. Cessation of medication for somebody who is suffering from schizophrenia is a significant risk factor for relapse into psychosis.

20. Secondly, throughout the period from August 2011 and 26 December 2013, you exhibited signs that you were mentally unwell. These signs were particularly apparent to those who knew you well. Your mother from time to time contacted ACT Mental Health because she was concerned about you, as is not uncommon in such cases, particularly where the person is adept at disguising their symptoms as you are, your mother's concerns were, at times, almost intuitive. Joel Thrower made a statement to police in which he described you as "always weird" and as having "ups and downs". He also described an incident after you moved out of the home of Mr Sofer Schreiber at the end of June 2013 and were living with David Willis, where you declined an invitation to play golf, saying, "No, I'm not feeling right in the head."

21. David Willis also spoke of you appearing depressed and of you expressing a belief that Mr Sofer Schreiber was turning your friends against you during the short period that you lived with Mr Willis. I will interpolate at this point to note that there was no evidence that Mr Sofer Schreiber was, in 2013, or at any time engaged in any activity that could be rationally described as turning your friends against you. Your comment to Mr Willis is, in the context of your now diagnosed illness, much more likely to be a sign of paranoia than a rational belief held by you.

22. Your friend, Francis Chung, said it was clear to him from about 2012 that something was not right with you, and he described episodes of you sounding "a bit distant" in your conversation with him. Indeed, Mr Chung spoke to you on the phone on 26 December 2016 and described you as sounding "a bit distant". It was a common feature of the evidence of your friends and acquaintances who knew you in 2012 and 2013 that your behaviour was odd and even bizarre at times.

23. Dayne Townsend, who knew you from when you were living with Mr Sofer Schreiber, described how you simply disappeared in 2013 without telling anyone and flew to the UK. When Mr Townsend saw you after you returned, you would say weird things and ask strange questions that made him feel uncomfortable. He told police that you would say weird things that made him wonder what was going on in your mind. After the UK trip, he described you as "really weird" and he started noticing you engaging in peculiar behaviour. David Roberts said that you had been quite unhealthy in the months leading up to the wake for Mr Sofer Schreiber in early January 2014. He described you as "kind of blank" and said that you were not putting your sentences together correctly. Aaron Gaffney testified to observing bizarre behaviour on your part while you were living with Mr Sofer Schreiber.

24. The third basis for my satisfaction that your responsibility for killing Mr Sofer Schreiber was very significantly diminished by mental illness is the evidence of your behaviour in the period shortly before 26 December 2013, and in particular the evidence of those with whom you worked at a restaurant in Gundaroo. It was evident from the evidence of your employer, Kurt Neumann, that your work performance, behaviour, and personal presentation deteriorated over the period from 7 September 2013 until you left on 19 December 2013. You told Mr Neumann early in your employment that you had a mental illness, and it is greatly to his credit that he persevered in attempting to keep you in employment despite the apparent difficulties.

25. Your last day of work at the restaurant was 19 December 2013, only one week before you killed Mr Sofer Schreiber. It is of great significance to my mind that on that day Mr Neumann observed that you were not doing your work. You told Mr Neumann that you could not concentrate because you were "hearing voices" or "hearing things". After leaving work early, you later sent a text message to Mr Neumann resigning for reasons concerning your psychological health. There could be no motive connected with the death of Mr Sofer Schreiber for you to have told Mr Neumann on 19 December 2013 that you were suffering from auditory hallucinations. I am satisfied that this is clear evidence that by 19 December 2013 you were showing signs of psychosis.

26. There was, however, and apparently unknown to Mr Neumann, other behaviour which you exhibited in your employment before 19 December 2013, which was consistent with you suffering from psychosis. Jeffrey Lamshed, a chef who supervised you in your employment at the restaurant, described an incident in October 2013 when, for no reason, you picked him up, threw him over your shoulder, and carried him about five or six metres along the verandah at work.

27. On other occasions, he described you as exhibiting bizarre behaviour, like going into blanks and spacing out for five minutes in the middle of service. He described one occasion on a Friday or Saturday night when the kitchen was busy, and you were staring blankly at a wall for five or six minutes, oblivious to the fever of activity around you. Mr Lamshed said that this behaviour was occurring more frequently just before you left your employment on 19 December 2013.

28. Fourthly, the killing of Mr Sofer Schreiber was completely alien to your usual character. You have no criminal history for violence, and none of your friends or acquaintances gave evidence suggesting that you were given to violence. The only possible exception was evidence given by Luke Van Unen who testified to seeing you physically assault Mr Sofer Schreiber, although it is not clear when this was supposed to have occurred. I do not accept the evidence of Mr Van Unen. He was a poor witness whose evidence was not supported by those who he said witnessed the events he described. Many of the witnesses testified that you were not a violent person.

29. Fifthly, I am satisfied that there was no rational motive for you to kill Mr Sofer Schreiber. The Crown obviously recognised that this was potentially a significant weakness in its case for a murder verdict and put before the jury a number of supposedly rational motives for you to have killed Mr Sofer Schreiber. The defining feature of those supposedly rational motives is their inherent unlikeliness. It was suggested that you may have harboured a grudge against Mr Sofer Schreiber because of the circumstances of you ceasing to reside at his house in or about May of 2013.

30. I accept that there was evidence that your relationship with Mr Sofer Schreiber was strained in or around that time, with Mr Sofer Schreiber commencing tribunal proceedings against you to recover for some damage to a wall at his home. It is clear that this was a minor event, resulting in you having to pay a meagre sum of $60 to Mr Sofer Schreiber. Mr Willis said that you called Mr Sofer Schreiber a "fuckwit" but that you laughed this off. Mr Willis told police that you laughed off the proceedings brought by Mr Sofer Schreiber about the damage to the wall. Aaron Gaffney, who knew you from at least 2011, said that you told him that you were relieved to move out of Mr Sofer Schreiber's home as living with him was driving you up the wall. Mr Gaffney said that you had never used foul language about Mr Sofer Schreiber or made personal remarks about him in his presence.

31. Another supposedly rational motive advanced by the Crown for you to have killed Mr Sofer Schreiber was animosity because you perceived that he was alienating you from your friends. As I have said earlier, there was simply no evidence of Mr Sofer Schreiber engaging in such behaviour so as to make any such belief rational. Nor was there any evidence from the many members of this circle of friends shared by you and Mr Sofer Schreiber that you were attempting increased social contact with them in late 2013. In fact, the evidence of Mr Willis was that you tended to become solitary when you were ill. Mr Willis said that the death of your grandfather, which occurred while you were living with Mr Willis in 2013, put you, as he said, back in your shell. The evidence suggested that you were in fact invited to a number of social events with the loose group of friends you shared with the deceased in December 2013.

32. The Crown also suggested you may have felt slighted by the fact that your friends were planning to go to the Falls Music Festival in Byron Bay at the end of December 2013 and you were not invited. This is pure fantasy. There is not the slightest indication in the evidence that you wanted to attend the festival or that the others in the group had suggested your presence would be unwanted even if you did want to attend. At a function at the George Harcourt Inn on 24 December 2013, which you attended, there was a discussion amongst those planning on going to the festival about obtaining camping gear. You offered to drive those who were planning on attending the festival to Byron Bay. Joel Thrower said that he thought it was very kind of you to offer but he laughed it off, and those who were present said that they were going to fly. You, of course, owned a property in northern New South Wales so the offer to drive the others to Byron Bay does not necessarily support the inference that your willingness to drive them was based upon your desperation to attend the festival. Indeed, there never seems to have been any suggestion that you expressed a desire to attend.

33. The Crown submitted to the jury that you may have been motivated by feelings of jealousy and rejection towards Mr Sofer Schreiber and that you became so incensed by his rejection that you could not contain your rage and murdered him. I reject that proposition as being unfounded in the evidence and contradicted by credible evidence. You and Mr Sofer Schreiber were observed to sit next to each other and talk amicably at a function at the George Harcourt Inn on 24 December 2013. This was a function to which you were invited by one of the members of the group of friends. In fact, that night, you had a verbal argument with Matt Thrower about derogatory remarks made by him about Mr Sofer Schreiber.

34. This hardly suggests animosity on your part towards the deceased. That night, you asked Mr Sofer Schreiber if he would like to meet up for lunch on Christmas Day to which Mr Sofer Schreiber replied, "Sure, sounds good". No settled plans to meet for lunch were made at that time. As might be expected, telephone records show that you tried to contact Mr Sofer Schreiber on Christmas Day, but without success. The records do not, in my opinion, reveal a pattern of attempted contact on Christmas Day, suggesting anger on your part that you could not contact Mr Sofer Schreiber. The evidence, in fact, showed that you had dinner on Christmas Day with your family. I am satisfied that the evidence does not establish any rational motive for you to have killed Mr Sofer Schreiber.

35. Sixthly, evidence from those who saw you in the period after the death of Mr Sofer Schreiber demonstrated behaviour on your part consistent with you being mentally ill. David Roberts saw you at the funeral and wake of Mr Sofer Schreiber on 10 January 2014. After observing that you had been unwell for a few months before those events, Mr Roberts referred to you as being blank and not putting your sentences together correctly. He saw you again on 6 February 2014 and described you as "vague" and "not with it", unresponsive in conversation and unable to focus. He described you as asking a question and after having received a reply, looking around the room for a period before asking the same question again.

36. Luke Griffis gave evidence of you engaging in weird behaviour at Mr Sofer Schreiber's wake on 10 January 2014. Gregory Haddock had trouble engaging in a conversation with you on the day of Mr Sofer Schreiber's funeral, saying that your conversation did not flow like normal conversation. He later saw you at a music venue where he described you as simply staring at the band. Stuart Osborne spoke to you at the wake for Mr Sofer Schreiber on 10 January 2014. He said that during the conversation, you became distracted and stared into the distance. When he was able to regain your attention, you spoke to him about the same things about which you had spoken before you stared into the distance. Mr Osborne thought your behaviour was bizarre.

37. ACT Mental Health records for this period are also useful. On 6 January 2014, staff at ACT Mental Health conducted a mental state examination in which they noted that you provided vague and sometimes contradictory answers to questions put to you. Frequent use of certain facial expressions were observed, as was delay in responses to questioning. Tangentiality was observed. You were also observed to be looking around the psychiatrist's office, although you did not report any hallucinations. On one occasion while attempting to answer a question, you appeared to lose your train of thought and said, "Sorry, I was drifting off".

38. It is clear from the clinical notes that those who examined you were suspicious that you were demonstrating psychotic features. Clinical notes reveal that your mother contacted ACT Mental Health on 10 January 2014, expressing concern about your mental health. It is clear from the notes that ACT Mental Health workers shared her concern as a note from 10 January states that workers made a phone call to your mother to discuss their concerns about you. On 14 January 2014, mental health workers met with your mother and she reported that you had gone downhill over the previous one and a half months. Mental health workers tried to make contact with you over the following week but with limited success.

39. In a telephone contact on 17 January, you said that you had thoughts of self harm but you were handling them. The very next day, when again spoken to on the phone, you said you had no recollection of a discussion in those terms on the day before and said that you were having no thoughts of self harm. On 20 January, you were seen face to face by mental health workers. It was noted that your affect was inappropriate with you laughing at inappropriate times. Your thought form was described as circumstantial with vague answers often being provided to questions. The mental health worker was suspicious that you were guarded in your answers. There were no other obvious signs of psychosis.

40. On 21 January 2014, you were seen by a psychiatrist, Dr Julie Simes. The medical notes reveal that while there were no obvious signs of psychosis, Dr Simes was suspicious that you were masking background positive symptoms. Her evidence at your trial reinforced this conclusion. There were other occasions in late January and early February 2014 when you were seen by ACT Mental Health workers when you displayed no symptoms of psychosis. On the medical evidence, this is not inconsistent with you suffering from a psychosis of varying degree throughout that period.

41. In circumstances where you have a well documented history of concealing or minimising symptoms surrounding your admission to hospital in 2011, positive signs of illness, it seems to me, are of more significance in determining your mental state in the period from December 2013 to February 2014 than observations suggesting an absence of symptoms. It should also be recalled that many of your contacts with mental health workers in late 2013 and early 2014 were with allied health professionals, who do not have the same skill in identifying signs of psychosis as a trained psychiatrist.

42. The final reason for my satisfaction that your responsibility for killing the deceased was very significantly diminished by mental illness is that this finding is consistent with the evidence given by Prof Mullen and Dr Allnutt. It is appropriate at this time that I deal with some submissions that were made by the Crown during the sentence proceedings.

43. The Crown submitted that by rejecting the defence of mental impairment and finding you guilty of manslaughter by reason of diminished responsibility, the jury must have rejected your account of your mental state at the time that you killed Mr Sofer Schreiber, as you described it to Prof Mullen, Dr Allnutt and Prof Greenberg.

44. The Crown submitted that the jury must have rejected your account to the psychiatrist, as otherwise the jury would have had to accept the opinions of Dr Allnutt and Prof Mullen that, on balance, you were entitled to the defence of mental impairment. I do not accept that submission. The jury were given a conventional direction that they should not reject unchallenged and consistent evidence from the psychiatrists unless the facts on which they relied to form their opinions were not satisfactorily established or contradicted by other acceptable evidence, or there was some other factor before them reflecting on the validity of the opinions expressed.

45. The jury were also given a conventional direction that it was up to them to determine the facts as they emerged from the evidence. Even if it logically followed, which it does not, from the directions given to the jury, and their verdict, that they must have rejected the account given by you to the psychiatrists of your mental state, it does not follow that they must have rejected your account completely.

46. It is more important, however, to look at the actual evidence given by Prof Mullen and Dr Allnutt to see exactly what evidence was before the jury. Both Prof Mullen and Dr Allnutt were of the opinion that you were psychotic at the time that you killed Mr Sofer Schreiber, and to such an extent that you would be entitled to be found not guilty on the ground of mental impairment. Prof Greenberg did not give an opinion. Due to ill health, Prof Mullen did not give oral evidence, but his written report was tendered. Prof Mullen was therefore not cross-examined, a fact which the jury were told they could take into account when assessing the weight to be given to his opinions. The jury were therefore entitled to give little weight to his opinions.

47. An examination of the evidence of Dr Allnutt reveals that he was quite equivocal at times about his opinions, and on many occasions when giving an opinion said that it was really for the jury to decide. Indeed, Dr Allnutt expressly testified that it had been difficult for him to arrive at his ultimate opinion. Dr Allnutt listed circumstances that suggested you were psychotic to a degree necessary to found a defence of mental impairment, and circumstances which suggested that you were not. It was open to the jury to give more or less weight than Dr Allnutt did to each of those individual circumstances. This was perfectly consistent with the directions given to the jury.

48. I am satisfied that there is no necessary inconsistency between the verdict and the finding that your account to the psychiatrist was essentially true and correct. I say "essentially" because it is not possible or necessary to say that every detail of the killing that you gave to the psychiatrists is accurate. I would be more suspicious of fabrication if your account to the psychiatrists had remained consistent over time. I am, however, satisfied that your account of your mental illness at the time that you killed Mr Sofer Schreiber is generally reliable.

49. The Crown submitted that I should find that you had either fabricated or exaggerated the extent of your mental illness at the time that you killed the deceased when you spoke to the psychiatrist. In my opinion, the evidence is very clearly contrary to that submission. At the time you spoke to Prof Mullen, you were clearly psychotic. Prof Mullen is a highly experienced forensic psychiatrist, and I have no hesitation in accepting his observations of you at the time. It strikes me as incredible that somebody as mentally ill as you were at that time, floridly psychotic and in a grossly disturbed state of mind, would nevertheless possess the acumen or mental focus to pursue a course of deliberate dissimilation, consciously contrived to suggest a degree of mental illness on 26 December 2013 which you did not actually suffer.

50. The fact that you initially opened up to an occupational therapist in the Alexander Maconochie Centre about your mental state at the time that you killed Mr Sofer Schreiber, rather than to a psychiatrist, lends an air of verisimilitude to your account. If you had been intent on fabricating or exaggerating mental illness in order to assist you to face the charge of murder which you then faced, it is improbable that you would not have given your account initially to your treating psychiatrist.

51. As your treating psychiatrist, Dr Barker, observed your presentation after you opened up about the state of your mental health at the time that you killed the deceased was inconsistent with somebody fabricating or exaggerating illness. In his experience, which is consistent with commonsense, a person attempting to fabricate or exaggerate illness is likely to be very forthcoming about their supposed symptoms. Dr Barker described you as remarkably different in presentation, minimising or refusing to talk about your symptoms.

52. The Crown also sought to cast doubt on your account to the psychiatrists of the events of 26 December 2013, by reference to the forensic evidence at the home of the deceased. In my opinion, nothing adduced by the Crown in the forensic evidence gives me cause to doubt the essential narrative of your mental state provided to the psychiatrists. If, as I am satisfied, your mental health was substantially impaired by psychosis on 26 December 2013, it would hardly be surprising if some of the details provided by you to the psychiatrists of your actions on that day prove to be unreliable.

53. You are currently 29 years old and you have been remanded at the Alexander Maconochie Centre since 15 February 2014. Corrective Services' records indicate that your behaviour and attitude towards staff and other inmates has mostly been positive during this period. You were, however, subject to disciplinary action on one occasion for fighting on 18 December last year. You are the youngest of three sons from your parents' relationship. Your parents separated amicably when you were 16 years old. You continue to enjoy close and positive relationships with both of your parents and your two siblings. You reported that upon your release you would be able to live with your mother, which she confirmed.

54. You reported having completed year 12 and then a degree in music from the Australian National University in 2007. You had been employed within the hospitality industry before you were remanded in custody. However, as I have already noted, you left that employment shortly prior to the commission of the present offence due to a decline in your mental health. During your current period on remand you have completed a number of certificates, but you have also declined the opportunity to attend some education programs. At the time of the preparation of the Pre-Sentence Report you were employed as an airlock cleaner, a position that you had held since August 2014.

55. You told the author of the Report that you believed that your current mental state had become increasingly more stable since being remanded in February 2014, which coincided with the recommencement of your medication regime after ceasing it two months prior to the commission of the current offence. You expressed your regret at having killed the deceased to the author of the Report. The author of the Report noted that there were concerns that you would again become a risk to yourself and the community if you were to experience a similar decline in your mental health to that which you experienced prior to killing the deceased. You were assessed as at high risk of general reoffending because of the nature of the offence and your mental health issues. The assessment is solely for the purposes of determining the level of support and resources Corrective Services would provide to you if you were to be released into the community. At the sentence hearing, further reports from Prof Greenberg and Dr Allnutt were tendered and both psychiatrists gave oral evidence. Each psychiatrist accepted that you suffer from schizophrenia and it is highly likely that this will be a lifelong condition. Each accepted that you will most likely require treatment for this condition for the rest of your life.

56. It is clear that you need to be closely monitored over the course of your lifetime to ensure early detection of any deterioration in your mental state and any relapse into acute psychotic symptoms. Your poor history of compliance with treatment prior to 26 December 2013 is an added risk factor, as is your tendency to be guarded about your symptoms and to conceal the reality of your mental state. In the light of your now demonstrated capacity to engage in significant violence when mentally unwell, I have no doubt that those who may in the future be responsible for monitoring and treating you in the community will be especially vigilant to ensure that you comply with your treatment regime.

57. It is quite probable for a period of time that this will require the administration of depot medication so as to minimise the possibility of non compliance. Any risks to the community would also be greatly reduced by ensuring that you have regular contact with, and assessment by, a professional psychiatrist as opposed to other allied health professionals who do not have similar training. Evidence was given by Dr Peter Norrie, the ACT chief psychiatrist, about the procedures available for the making of psychiatric treatment orders to ensure that you are appropriately medicated while in the community even if you do not have the capacity or the insight to voluntary accept such treatment.

58. There was nothing in the evidence of Dr Norrie to suggest that you could not be appropriately managed in the community after your release from prison without you being an unacceptable risk to the community. I accept the Crown's submission that the killing of Mr Sofer Schreiber was a very violent and premeditated offence. I accept that you intended to kill Mr Sofer Schreiber. The deceased was alive for between 10 or 20 minutes after the first stab wounds were inflicted by you until you inflicted the stab wound to his throat which would have been almost immediately fatal.

59. There is no evidence, however, that you knew or believed that the deceased was alive throughout that period. The jury's verdict is consistent with you knowing that what you did was wrong and with you being able to control your actions. Were it not for my finding that your moral culpability for the killing was very substantially diminished by your mental illness on 26 December 2013, this offence would call for a very substantial term of imprisonment. Indeed, were it not for your mental illness, you would undoubtedly have been convicted of the crime of murder.

60. The reduction of the offence from murder to manslaughter by reason of diminished responsibility carries with it an automatic reduction in the sentence available to be imposed by the court. This is a relevant factor in determining the appropriate sentence for the crime of manslaughter by reason of diminished responsibility. The death of Mr Sofer Schreiber was truly a tragedy. All the more so because it was so senseless.

61. The victim impact statements tendered at the sentence hearing speak of the deceased as a kind and gentle person loved by his extended family and friends. The terrible circumstances of his death have had a significant and lasting impact upon those who loved him. Many of those who provided statements have clearly had difficulty in making sense of these events, which is unsurprising.

62. Many speak of their concern that you will one day be released from custody to again live in the community. That is understandable, but they must attempt to understand the extent of your illness at the time that you killed the deceased, which robbed you of the ability that we all take for granted, to distinguish reality from fantasy. The Crown submitted that you have shown little remorse for your actions. This is not an entirely fair observation. A combination of the negative symptoms of schizophrenia, which includes blunted affect, and the effects of your anti-psychotic medication, mean that you have probably expressed the remorse of which you are capable. You have expressed remorse to the author of the Pre-Sentence Report and also to Dr Barker.

63. Sentencing in the present circumstances requires a balancing of the need to acknowledge that you have committed a terrible crime with the diminution of your moral culpability caused by your mental illness. You killed the deceased while subject to a delusion that he presented a danger to you and your family. In Mason-Stuart v The Queen [1993] SASC 4322; (1993) 61 SASR 204, the South Australian Court of Criminal Appeal said at 204:

The importance of fixing a sentence which is proportionate to the gravity of the crime and which operates as a deterrent to other members of the public, is considerably less when the court is dealing with a person of diminished responsibility than it otherwise would be.

A person of seriously diminished responsibility is not an appropriate subject for exemplary punishment with a view to deterring others and the ends of justice are not served by insisting that the punishment be proportionate to the gravity of the crime viewed objectively, as distinct from the subjective gravity of the particular offender's offending. The problem is to find a solution which will enable the public to be protected, without imposing a harsh punishment upon a person whose subjective moral responsibility is seriously diminished.

64. In R v Tsiaras [1996] VicRp 26; (1996) 1 VR 398, the Victorian Court of Appeal said at 400:

Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Secondly, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on a prisoner than it would on a person of normal health.

65. These principles were later confirmed in R v Verdins [2007] VSCA 102; (2007) 16 VR 269, which added a sixth consideration being, "Where there is a serious risk of imprisonment having a significant adverse affect on the offender's mental health, this will be a factor tending to mitigate punishment". Recently, in Monfries v The Queen [2014] ACTCA 46, the Court of Appeal adopted a convenient summary of those principles as found in the New South Wales case of the Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at 177. I am satisfied that your illness can be appropriately treated in the Alexander Maconochie Centre, and that imprisonment is not likely to worsen your illness. There is nothing to suggest that your illness will mean that a sentence of imprisonment will weigh more heavily on you than it would on a person in normal health. I am satisfied, however, and for the reasons that I have given that your illness reduces your moral culpability for your offence and should result in a significant moderation of the need to impose a sentence which reflects the gravity of the offending, and which is designed to deter others. I think it unlikely that you will reoffend in a similar manner so long as you are properly supervised and treated. In particular, it is vital that you comply with any medication regime prescribed for you.

66. My attention was drawn to the decision of Crispin J in R v Singh (1999) ACTSC 66 (Singh), where his Honour imposed a sentence of 10 years imprisonment with a non-parole period of four years for an offence of manslaughter by reason of diminished responsibility. The offender in that case drugged her boyfriend and injected him with a lethal dose of heroin. The offender had a severe borderline personality disorder, a moderate to severe depressive illness and an eating disorder. Crispin J was satisfied that her mental responsibility was severely impaired as a result of psychological illness. Whilst there are many similarities between the circumstances in Singh and those in the present case, there are also dissimilarities. Your actions were more violent than those of the offender in Singh, but on the other hand, her actions were the subject of greater premeditation and planning. It is difficult given the limited description of psychiatric evidence in his Honour's sentencing remarks to compare the extent of the impairment of your mental responsibility with that of the offender in Singh, although I do note that Crispin J described the offender in Singh as "nearer to insanity than normalcy".

67. I also note that there was no acknowledgement in the sentencing remarks of his Honour of any reduction in sentence built into the verdict of manslaughter by diminished responsibility. It was submitted by your counsel that I should take into account your willingness to plead guilty to a charge of manslaughter had that been offered by the Crown. I do not accept that submission. As I understand it, instructions were never sought from you by your legal counsel as to whether you would enter a plea of guilty to a charge of manslaughter by reason of diminished responsibility. This was because of the Crown indicating its unwillingness to accept such a plea.

68. You maintained your plea of not guilty by reason of mental impairment throughout the trial, a defence which was later rejected by the jury. I do accept, however, that the way in which you conducted the trial through your legal representatives was such as to appropriately facilitate the course of justice. A substantial sentence of imprisonment is the only realistic penalty for the present offence. It is clearly, in my opinion, desirable that a lengthy parole period be put in place to give the Sentence Administration Board an opportunity to ensure that you are closely supervised upon your release from prison, and in circumstances where any breach of the conditions of your parole may result in you being immediately returned to custody.

69. Depending upon your progress in prison and particularly an assessment of your insight into your illness and your willingness to comply with treatment, the Sentence Administration Board may determine to release you on parole at the earliest available opportunity. On the other hand, it will have the option of retaining you in custody if you continue to present a danger to other members of the community. A lengthy parole period gives the Sentence Administration Board greater flexibility and the opportunity to closely monitor your compliance with treatment over a long period when you are returned to the community.

70. I record a conviction for the offence of manslaughter. You are sentenced to 12 years imprisonment, commencing on 14 February 2014 and expiring on 13 February 2026. I set a non parole period of six years, commencing on 14 February 2014 and expiring on 13 February 2020.

71. I have no doubt that the Sentence Administration Board will carefully consider your treatment progress in custody and will obtain expert psychiatric advice before it considers releasing you on parole.

I certify that the preceding seventy-one [71] numbered paragraphs are a true copy of the Reasons for Sentence Judgment of his Honour Justice Burns.