R v Peterson

extempore Judgment 1Earlier today, after special hearing under the provisions of the Mental Health (Forensic Provisions) Act 1990 (NSW), I found the accused not guilty of the murder of Rafik Makaradi but on the limited evidence available in the special hearing found that he committed the offence of the manslaughter of Rafik Makaradi on 30th May 2012. I am now required under the provisions of the legislation to nominate what is referred to as a limiting term. 2The provisions of the legislation relevant to this task were summarised by Adamson J in R v Goodridge (No 2) [2012] NSWSC 1180 at [24]-[27] in the following terms: A verdict that the Forensic Patient committed the offence charged (s 22(1)(c)) is a "qualified finding of guilt" made in the absence of a conviction (s 22(3)(a)). Accordingly, by reason of s 23(1)(a), the court must indicate whether, if the special hearing had been a normal trial, it would have imposed a sentence of imprisonment. Section 23(1)(b) of the Act defines limiting term as: ... the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence. The effect of s 23(1)(b) of the Act is that the court is obliged, when determining a limiting term, to adopt and apply all the statutory and common law principles of sentencing that apply to the sentencing of a person convicted of that offence: R v AN [2005] NSWCCA 239 at [13]. A limiting term is the period beyond which a person cannot be detained for the offence which was the subject of the special hearing: R v Mitchell [1999] NSWCCA 120; 108 A Crim R 85 at [30]. In R v Mailes[2004] NSWCCA 394; 62 NSWLR 181 (Mailes), Dunford J, with whom Adams and Howie JJ agreed, said, at [32] that the purpose of a limiting term: ... is not to punish the person who has not been convicted of any crime, but to ensure that he or she is not detained in custody longer than the maximum the person could have been detained if so convicted following a proper trial ... From this I understand that it is no part of my duty today to give any indication about what might have been any appropriate non-parole period. Naturally in a case of manslaughter very seldom, if ever, would it be appropriate not to impose a term of imprisonment and I am satisfied that if this had been a normal trial, rather than a special hearing, no other sentence than a term of full-time custody would have been imposed. 3It is unnecessary for me to reiterate all of the circumstances of the manslaughter of Mr Makaradi. Those circumstances are fully discussed in the judgment I gave earlier today. It will be necessary however to say something about what is usually referred to as Mr Peterson's subjective circumstances. 4At the outset it is well to bear in mind that when sentencing any person for the crime of manslaughter the starting point must always be the law's concern for the vindication of human life. The law treats all life as equal and does not inquire into the circumstances or worth of the deceased. 5It is well known, and I will return to this point, that when sentencing an offender who suffers from mental illness or intellectual disability many of the principles which underpin sentencing law are attenuated, indeed some will have no application. But it is well to bear in mind, given that my finding in relation to manslaughter was based upon the success of the defence of substantial impairment, the decision of R v Blacklidge (unreported, NSWCCA 12 December 1995). In that seminal decision Gleeson CJ said: The abnormality of mind substantially impairs the offender's mental responsibility for his or her act but it does not negate such responsibility. The reduction in capacity for self-control which results from the abnormality of mind diminishes the responsibility but does not excuse the act. 6I accept the argument advanced by the Crown Prosecutor that the authorities indicate that any sentence must reflect the objective seriousness of the offence and even in a case where an offender suffers from a serious intellectual disability, like Mr Peterson, particular care must be taken not to allow undue emphasis to be given to the subjective circumstances of the offender. 7Before dealing with the circumstances of this particular case I think it appropriate that I refer to the well-established principles for sentencing the intellectually disabled. Recently in R v McKnight (No. 4) [2014] NSWSC 1029, I summarised those principles in the following way at [74] to [77]: There are certain well recognised principles that come into play when sentencing a person suffering from mental illness, especially where as here, the mental illness was a significant cause of the commission of the offence. In such cases, the impairments arising from the mental illness substantially reduce the offender's moral culpability for the offence. I am conscious that this offender's criminal liability has been reduced by his reason of his substantial impairment, but his condition continues to have relevance for sentencing purposes. Moral culpability, as distinct from legal liability, is an issue of particular relevance in sentencing (see Chung). Moreover, "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 ill] offender and to the needs of the community." Muldrock v the Queen [2011] HCA 39; 244 CLR 120 at 139 [54]. Additionally, it is well recognised that general deterrence should "often be given very little weight" in the case of the [intellectually disabled] "because such an offender is not an appropriate medium for making an example to others" (R v Mooney (unreported, Court of Criminal Appeal (Vic), 21 June 1978). The relevance of specific deterrence may also be diminished (R v Windle [2012] NSWCCA 222 at [41] - 42]). I recognise that the application of these principles relating to mental illness does not always lead to a lesser sentence than that which would be imposed upon an offender of ordinary capacity. (Veen No. 2 at 476 - 477; R v Engbert (1995) 84 A Crim R 67 at [71]). Sometimes an offender's mental illness will make him a particular danger to the community. This factor may require a heavier sentence, proportionate to the offending, than that appropriate in the case of an offender of ordinary capacity. Moreover, in a given case, a need for specific deterrence of the offender may have a similar effect. 8Had I been uninstructed by the decision of the Court of Criminal Appeal in Potts v R [2012] NSWCCA 229; (2012) 227A Crim R 217, I would have thought that the effect of s23(1)(b) was really to reduce legal responsibility as opposed to moral culpability, but Johnson J's judgment at [33] makes clear that in determining liability reduced moral culpability is a salient factor. That being so, although I am of the view that the principles most recently discussed in Muldrock continue to apply when sentencing a person with Mr Peterson's disabilities, care needs to be taken not to double count, as it were, and I will take that care. Having said that I adhere to the view I expressed in McKnight that moral culpability is of particular relevance to sentencing. 9In terms of objective seriousness of the offence I bear in mind that because of his mental disability Mr Peterson so far lost self-control that he subjected Mr Makaradi to a ferocious attack with a wooden bat and inflicted upon him the most severe injuries. At the time of the attack with that weapon Mr Makaradi was a vulnerable person in that, to Mr Peterson's knowledge, he was very heavily intoxicated. I am satisfied that Mr Peterson was not heavily intoxicated. And on the evidence I have accepted from Dr Duflou the attack continued whilst Mr Makaradi was in a prone position on the ground. Clearly this was offending of significant objective seriousness. 10I turn then to the subjective circumstances of Mr Peterson. He, it must be said, comes from circumstances which, putting aside the commission of this offence, would evoke great sympathy. He was probably born with the mild to moderate intellectual disability from which he still suffers. One should not be misled by the diagnostic label of "mild to moderate". There can be no doubt on the evidence I heard, and accepted in the special hearing, that Mr Peterson's disability is a very serious one. It is compounded by the condition of epilepsy from which he suffers and also by the frontal lobe damage which probably results from that epilepsy. His personal life has been tragic. He was abandoned by his parents when he was only two years of age and was raised in an institution where, according to the histories received by the psychiatrists, he was both physically and sexually abused. He left the institution at about the age of seventeen and was for a time reunited with his family but his intellectual disability is such that he has always incapable of participation in the open labour market. His life has been spent as an invalid pensioner, or a disability support pensioner in more modern terminology. 11Of concern in sentencing him is that a feature of his disability and of his frontal lobe damage is that he has very limited capacity to exercise powers of self-control. I have found that it was a loss of control due to his underlying condition which was the most significant factor accounting for his attack on Mr Makaradi. His criminal record has been tendered and given what I have said about his intellectual disability and his unfortunate social circumstances, the record is not a long one. It does not show a pattern of consistent offending or of resolute disregard of the law. However, of some concern is the nature of the offences on the record. They include malicious injury, common assault, assault occasioning actual bodily harm and destroying or damaging property. I know nothing of the circumstances of his past offending but what I know of his condition suggests to me that his inability to control himself appropriately probably contributed to it. 12I record that Mr Peterson, in his unfitness to plead had the advantage of representation by Mr Smith of Counsel and Ms Shaw from the Legal Aid office. On 3rd March 2014, bearing in mind his incapacity to plead, Ms Shaw wrote a very careful letter to her counterpart at the office of the Director of Public Prosecutions suggesting that the outcome of the case was likely to be a finding of manslaughter rather than murder and making submissions that the charge in the indictment should be downgraded. Given Mr Peterson's unfitness it is understandable that the Crown were not in a position to accede to those submissions. Nonetheless, consistently with the position expressed in the letter, the trial has been conducted on the basis, effectively, that had this been a normal trial Mr Peterson would have pleaded guilty to manslaughter, and Mr Smith in the most admirable way has refined the issues, running only those which were germane to reducing his client's legal liability from murder to manslaughter. 13There are obviously conceptual difficulties in treating the letter of 3rd March as an offer to plead guilty to manslaughter in circumstances where Mr Peterson has been found unfit to plead. On the other hand s 22A of the Crimes (Sentencing Procedure) Act 1999 permits a court to impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence whether by disclosures made pre-trial, during the trial or otherwise. The lesser penalty, of course, may not be unreasonably disproportionate to the nature and circumstances of the offending. In my view s 22A is engaged by the letter of 3 March 2014 and the manner in which Mr Smith conducted the hearing. 14In the limiting term I am about to nominate I have borne in mind my finding in relation to objective seriousness having regard to the judgment of Gleeson CJ in Blacklidge and I have also had regard to the attenuation of the relevance of denunciation and general deterrence referred to in the cases culminating in Muldrock. It seems to me in the circumstances of this case given the nature of Mr Peterson's illness that specific deterrence still has some part to play as a cause of the manslaughter of Mr Makaradi, as I have said, was his inability to control himself which is part of his disability. Nonetheless some degree of specific deterrence would still have been called for had this been a sentence imposed after a normal trial. 15I think also that there is some scope, perhaps not very much, in bearing in mind the need to protect the public as his inability to control himself does manifest itself in crimes against the person from time to time. I bear in mind the comments of the majority justices in Veen (No 2) that, although this is a factor which may point more towards a higher sentence than some other factors which arise out of his intellectual disability, any sentence imposed must nonetheless remain proportionate to the crime. 16I also have regard to his age. He is now 62 years of age. Many of the doctors who have examined him have observed that he looks old for his years, and having seen Mr Peterson in court I think that is an apt comment. It may be that because of his deprived background his life expectancy could be reduced and any term imposed might involve, were he fit to be tried, a large proportion of the years remaining to him. This is a factor that cannot be given much weight, but I bear it in mind. 17But for the provisions of s 22A had this been a sentence imposed after a normal trial I would have imposed a term of imprisonment of ten years notwithstanding the schedule of other sentences that Mr Smith handed to me, but given what I have said about the facilitation of the administration of justice I will reduce that indication or nomination by twenty per cent. Mr Peterson has been in custody since 31 May 2012 so the limiting term I nominate will be backdated to take account of his previous custody. 18I record my finding as follows. If the special hearing had been a normal trial of a person fit to be tried and a verdict of guilty of manslaughter had been returned I would have imposed a sentence of imprisonment. My best estimate of the term of such a sentence is one of eight years. I nominate a limiting term of eight years then to date from 31 May 2012. It should be pointed out for the benefit of interested members of the public that given his unfitness Mr Peterson's case will be reviewed regularly by the Mental Health Review Tribunal who will monitor his condition and in due course assess when it considers him ready to be released into the community. 19I make the following orders. (1)Under s 24 of the Mental Health (Forensic Procedures) Act I refer Mr Peterson to the Mental Health Review Tribunal in light of the limiting term I have nominated. (2)I order that in accordance with the previous order of the Mental Health Review Tribunal he be held in custody in an appropriate correctional centre until further assessment by the Tribunal.