228 CLR 357
Mulato v R [2006] NSWCCA 282
Muldrock v R [2011] HCA 39
Source
Original judgment source is linked above.
Catchwords
228 CLR 357
Mulato v R [2006] NSWCCA 282
Muldrock v R [2011] HCA 39
Judgment (9 paragraphs)
[1]
Solicitors:
Solicitor for Public Prosecutions (Crown)
William O'Brien and Ross Hudson Solicitors (Offender)
File Number(s): 2013/275908
[2]
REMARKS ON SENTENCE
HIS HONOUR: On 8 August 2016, the offender, Michael James Quinn, was arraigned in this Court on an indictment that charged him with murdering Cherie Vize at Farmborough Heights in this State on 22 July 2013. He pleaded not guilty.
Previously, on the application of Mr Quinn and with the consent of the prosecution, I ordered that he be tried by a Judge alone (Criminal Procedure Act 1986 (NSW); s 132(2)). Accordingly, after Mr Quinn was arraigned, the trial proceeded before me without a jury.
On 8 September 2016 I found Mr Quinn guilty of murder. I published reasons for the verdict (R v Quinn (No 2) [2016] NSWSC 1244; the "Principal Judgment"). On 18 November 2016 I heard submissions from the Crown and on behalf of Mr Quinn concerning sentence.
At the outset I note that it was not submitted that I should impose on Mr Quinn the maximum penalty of life imprisonment (Crimes Act 1900 (NSW); s 19A). I am required to impose a life sentence if I am satisfied that the level of culpability involved in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met if a life sentence is imposed (Crimes (Sentencing Procedure) Act 1999 (NSW), "Sentencing Act"; s 61(1)). I am not so satisfied.
The standard non-parole period for the offence of murder is twenty years (Sentencing Act; Division 1A; Item 1). The Sentencing Act does not require me to undertake the sentencing exercise by treating the non-parole period as the necessary starting point or the end point in fixing the sentence (Muldrock v R [2011] HCA 39; 244 CLR 120 at [17]; "Muldrock"). Equally, the Court is not required to commence the sentence exercise by asking whether there are reasons for not imposing the standard non-parole period in this case (Muldrock at [25]). Instead, I am required to bear in mind the legislative guideposts, being the standard non‑parole period and the maximum penalty. The Court must identify all of the factors relevant to the sentence, discuss their significance and then determine the appropriate sentence (Muldrock at [26], citing Markarian v R [2005] HCA 25; 228 CLR 357 at [51] per McHugh J).
The Offence
The following account of the murder of Ms Vize is taken from the Principal Judgment.
At the time of her death Ms Vize was 25 years of age. Mr Quinn was 24. He is now 27. Both of Ms Vize and Mr Quinn were passionate about the visual arts. Mr Quinn graduated from the University of Sydney with a creative arts degree in May 2013 but as at 22 July 2013 he was yet to find work. [1] Ms Vize was enrolled in the same degree as at the date of her death. She also worked in various art stores across Sydney.
Ms Vize and Mr Quinn commenced a relationship around May 2010. [2] I am satisfied that they saw each other continuously from that time until her death although during that period they saw other people as well. [3] At times the relationship was tumultuous but there is no suggestion that Mr Quinn was violent towards Ms Vize prior to when he killed her, although he did threaten self‑harm on at least one occasion. The volatility in their relationship was most likely a result of the manifestation of Mr Quinn's borderline personality disorder and compulsive traits. In evidence that I accepted, Ms Vize's mother recalled that Mr Quinn constantly telephoned their home to find out where she was. [4] By contrast, the witnesses invariably described Ms Vize as a caring person who was conciliatory towards all. [5]
Approximately a month prior to her death, Ms Vize commenced another relationship with Andrew Meyers. [6] In the Principal Judgment I made the following findings about the course of events from that time until the evening before her death when she travelled to and stayed at Mr Quinn's home in Farmborough Heights near Wollongong: [7]
(1) By late June 2013, Ms Vize had determined that she would end the relationship with [Mr Quinn] and commence a relationship with Mr Meyers with whom she was besotted. She introduced Mr Meyers to her friends and family. She publicly declared the relationship via Facebook. However, Ms Vize still cared for [Mr Quinn] and was concerned about how he would respond to the breakup;
(2) By no later than 14 July 2013, Ms Vize had told [Mr Quinn] that the relationship was over or was coming to an end. On 17 July 2013, he sent a message acknowledging that and regretting the fact that it would happen. However, he could not accept it and repeatedly telephoned and messaged her despite the fact that she did not often respond. Part of his reason for doing so was his sadness about the health of his grandfather;
(3) Ms Vize had dinner with [a friend] on 19 July 2013 and then spent the evening with Mr Meyers. On the morning of Saturday 20 July 2013, Mr Meyers drove to her work at Bondi Junction. [After work she] was collected by [Mr Quinn] and driven to her home at Dolans Bay where they both spent the night. The following day [Mr Quinn] drove [Ms Vize] to her work at Bondi Junction and then collected her. They drove to [Ms] Vize's home at Dolans Bay and then to Wollongong [being the evening of Sunday, 21 July 2013 which was the night prior to her death];
(4) On the evening of Saturday, 20 July 2013, Ms Vize and [Mr Quinn] argued over Ms Vize ending the relationship. She implored him to move on with his life;
(5) [Mr Quinn] saw [a] text that Ms Vize sent to Mr Meyers at around 3.26pm on Sunday, 21 July 2016 referring to the morning after pill. This distressed [Mr Quinn] so much that he discussed it with his mother that evening and mentioned to his brother that Ms Vize was sleeping with someone else;
(6) On the evening before Ms Vize's death, she and [Mr Quinn] again argued over the breakup. [Mr Quinn] was by this time despairing; and
(7) [Mr Quinn] threatened self-harm in front of Mrs Vize on the evening of Saturday, 20 July 2013. He had expressed thoughts about self-harm in the context of the relationship breakup prior to that time.
In evidence that I accepted, Mr Quinn's mother, Joanne Quinn, stated that on the morning of Ms Vize's murder, ie 22 July 2013, her son and Ms Vize were asleep in his bedroom until some time after 9am. [8] At some point each of them came out of the bedroom separately for a brief period and then returned. Mrs Quinn said that later they both came out of the bedroom together and had some orange juice in the kitchen. [9] She recalled Ms Vize stating that they were going to spend the day painting together. Mrs Quinn recalled "[w]hile I was speaking with them, everything seemed fine", [10] however she had heard them argue the night before during which time Ms Vize cried. Mr Quinn spoke to her then about his distress that Ms Vize was seeing someone else. [11] I am satisfied that the argument the night before the murder arose out of Ms Vize telling Mr Quinn that their relationship was over and that she intended to continue seeing Mr Meyers.
At around 10.30am on 22 July 2013, Mrs Quinn saw Ms Vize walk outside the front of the house for a cigarette. About "a minute or so later" she "heard the front door 'bang'". [12] A short time later Mrs Quinn heard Ms Vize say "Michael don't do that". The events of the next few minutes were the subject of a great deal of evidence at the trial. It suffices to state that Mr Quinn seized a small brown knife from the kitchen that was approximately 20cm in length. [13] He went to the front yard and attacked Ms Vize. She resisted and suffered defensive slash wounds to her right hand. [14] She also suffered four superficial incised wounds to her neck as Mr Quinn tried to cut her throat. [15] Most significantly, Mr Quinn stabbed her fatally in the neck inflicting a wound of between 5cm and 10cm which cut her carotid artery and jugular vein. [16]
In the Principal Judgment the only descriptive term that I could find for these events and what followed was "carnage". On hearing what appeared to be a struggle Mrs Quinn ran to the front yard. She arrived at or shortly after the time when Ms Vize was fatally stabbed. [17] She observed Ms Vize to be bleeding profusely and attempted to help her. She noticed Ms Vize's breathing began to change. [18] A neighbour came to her assistance and rang triple-0. [19] Consequently, part of the immediate aftermath of the stabbing was recorded. [20]
By this time Mr Quinn's younger brother, Thomas Quinn, had run to the front yard in response to his mother's screaming. [21] He observed Ms Vize's eyes were rolling and she was "gasping for air". [22] He ran into the house to obtain some towels. When Thomas returned he saw his brother in the front yard stabbing himself in the chest with another knife. [23] Thomas ran inside and telephoned his father. He returned to find his brother near the nature strip. By this time the offender had already stabbed himself in the neck with another knife. [24] This knife was protruding from his neck. This injury rendered him a quadriplegic.
Paramedics and police began to arrive at the scene. This case is a stark example of the terrible scenes that police and emergency services must confront in the course of their work. Both Ms Vize and Mr Quinn were transported to hospital. Ms Vize's neck was operated upon but to no avail. Sometime during the evening of 22 July 2013 she died at Wollongong Hospital from blood loss consequent upon the wound to her neck. Her parents were by her side.
In the Principal Judgment I concluded that Mr Quinn deliberately stabbed Ms Vize in the neck. [25] I was satisfied that he intended to kill her and then kill himself. I accepted that he did so because he realised that his relationship with Ms Vize "was over or coming to an end" and that he was distressed from reading the text message she sent Mr Meyers on 21 July 2013. [26] As for how long Mr Quinn held an intention to kill Ms Vize and himself, I found: [27]
"…beyond reasonable doubt that, at least from the time [Mr Quinn] obtained a knife from the kitchen, he not only intended to deliberately stab Ms Vize he also intended to kill himself. The evidence suggests that he had been at least brooding over that possibility for some days. His discussions with his mother and [a friend] on the evening prior to the stabbing suggests he was in a state of despair. The events immediately after the killing revealed a lack of hesitancy consistent with a determination to end his own life."
However, as there was no reliable evidence of Mr Quinn's state of mind prior to his seizing a knife in the kitchen, I was not able to conclude whether or not he formed an intention to kill Ms Vize prior to that point. [28] In R v Olbrich [1999] HCA 54; 199 CLR 270 at [27] Gleeson CJ, Gaudron, Hayne and Callinan JJ confirmed that a sentencing judge may not take into account facts adverse to an offender unless they are established beyond reasonable doubt, and may take into account facts favourable to an offender if they are proved on the balance of probabilities. It follows that I cannot be satisfied that the murder of Ms Vize was either premeditated or spontaneous.
I mentioned earlier that part of the immediate aftermath of the stabbing was recorded as the neighbour who witnessed Mrs Quinn assisting Ms Vize rang the triple-0 service on her mobile phone. The recording of that call was tendered at the trial. [29] During the call Mrs Quinn sought assistance in dealing with Ms Vize. She can be heard requesting another ambulance when Mr Quinn stabbed himself. Ms Vize's distress can be heard in the background. At this time she was still conscious but her breath was shortening as she was draining of blood. Although the time between the attack upon her and her lapsing into unconsciousness was not long, during that period she would have known that she was seriously injured and possibly dying. A person she cared for had launched a cowardly and vicious attack upon her when she was completely defenceless. Ms Vize's death was not quick or painless. To the contrary, it would have been terrifying and she would have suffered greatly.
[3]
Victim Impact
I have already noted that at the time of her death Ms Vize was 25 years of age and studying creative arts at university. At the commencement of the Principal Judgment I noted that Ms Vize was a "peaceful person" who had a "passion for visual arts" and whose "passing has caused much sadness to her family and friends". [30] These brief comments were very much an incomplete description of Ms Vize's life and the effect her death had on others. A judgment of the Court addressing whether or not the prosecution has proven someone's guilt beyond reasonable doubt is necessarily directed to other topics. A murder trial is really only an occasion for examining the conduct and mental state of the accused.
Even allowing for those limitations the evidence adduced at the trial from Ms Vize's family and many friends uniformly portrayed her as an exceptionally warm and caring person with great empathy for those around her, including Mr Quinn. There was no doubt she was smitten with Mr Meyers. As a young woman it was her right to follow her passions. Even so, her conduct towards Mr Quinn in the last few weeks of her all too short life were indicative of someone who still cared for him and wanted to mitigate his feelings of rejection.
A victim impact statement from Ms Vize's mother, Evansueda Vize, was read to the Court by Ms Vize's friend, Medina Hasic (Sentencing Act; s 30A(1)). The Court received and considered that statement (Sentencing Act; s 28(1)). In accordance with s 28(4) of the Sentencing Act, [31] I consider it appropriate to take into account that statement in connection with the determination of punishment for Mr Quinn and, in particular, as part of the assessment of the harm done to the community by his actions.
Cherie Vize was her parents' only child. Evansueda Vize stated that her and her husband's lives revolved around their daughter. They hoped that she would have a family of her own and a successful career in the arts. Instead she said that their "lives were shattered and our future was destroyed" and all they are left with are memories. Those memories include the times when their daughter helped them care for the sick animals in their family pet shop as well as the occasions when she assisted children with disabilities with their artwork.
A brief insight into the pain that Cherie Vize's parents have experienced emerged from one part of the evidence that Evansueda Vize gave at Mr Quinn's trial. [32] She last spoke to her daughter in a telephone call at 7am on the morning of her death. Later that afternoon Mrs Vize was contacted by a social worker from Wollongong Hospital. She and her husband caught a taxi to the hospital. During the taxi ride she heard on the radio that someone had been stabbed and realised that it was her daughter. When she arrived at the hospital she was advised of what happened and spent some time with her daughter before she passed away. Mrs Vize and her husband live in Southern Sydney. The taxi ride to a hospital in the Illawarra region would have taken at least an hour. The events of that day, including that journey, could have been nothing other than pure agony for Mrs Vize and her husband.
In considering victim impact statements the Court may make such comment as it considers appropriate (Sentencing Act; s 28(3)). The Court acknowledges the very deep grief of Ms Vize's family and friends from her death at the hands of Mr Quinn.
[4]
Mr Quinn's Defence and Mental Condition
It is necessary to describe Mr Quinn's defence at the trial as those aspects of it which concern his mental condition have an ongoing significance to the sentencing exercise, both in terms of the level of criminality involved in the murder of Ms Vize and his present functioning.
Mr Quinn gave evidence at his trial. In summary, he stated that it was he and not Ms Vize who had ended the relationship yet she insisted on it continuing. He stated that he became despondent at the prospect of them both becoming trapped in what he called a "dysfunctional" relationship with each other. Mr Quinn stated that he decided that it would be best for Ms Vize if he took his own life. He said that the cutting of Ms Vize's throat was an accident that occurred only after she intervened to stop him from stabbing himself. [33]
I rejected all aspects of Mr Quinn's evidence that were not confirmed or corroborated by independent evidence, including his assertion that he did not intend to harm Ms Vize. [34] I did so because his evidence on disputed matters was implausible, internally inconsistent, inconsistent with the objective evidence or a combination of those matters. [35]
In addition to denying that he deliberately stabbed Ms Vize, Mr Quinn contended that, even if his actions were deliberate and otherwise constituted the crime of murder, his criminal culpability should be reduced from murder to manslaughter because he established the partial defence of substantial impairment by an abnormality of mind provided for by s 23A of the Crimes Act. The onus of proof in respect of that defence was on Mr Quinn and it was to the standard of the balance of probabilities. If the defence was established then Mr Quinn would have been found guilty of manslaughter instead of murder.
To establish the defence, Mr Quinn was required to demonstrate that, at the time he stabbed Ms Vize, he was subject to an abnormality of mind arising from an underlying mental or physiological condition other than one of a transitory kind, that at least one of his capacity to understand events, to judge whether his actions were right or wrong or to control himself was substantially impaired by that abnormality and that this impairment was so substantial as to warrant his criminal liability being reduced from murder to manslaughter.
I accepted that at the time he committed the act that caused Ms Vize's death, Mr Quinn suffered from an abnormality of mind arising from an underlying condition which was not of a transitory kind, being obsessive compulsive disorder ("OCD") and borderline personality disorder ("BPD"). [36] However, I did not accept that his capacity to understand events, judge whether his actions were right or wrong or control himself was substantially impaired by those abnormalities. [37]
Obsessive Compulsive Disorder is an anxiety disorder which creates a level of dysfunction in an affected person. Individuals affected by OCD typically fear contamination and may have intrusive thoughts which manifest in a compulsive need for order and certainty. Their obsessions, which are experienced as unpleasant, unwanted and intrusive thoughts, are relieved by their compulsions, such as cleaning or checking, which are time-consuming and impairs feelings of wellbeing and psychosocial function. [38] In the case of Mr Quinn, since his early teenage years, he has displayed obsessive compulsive behaviour in the form of excessive self‑cleaning, fear of contamination from touching or even being near to garbage bins and repeatedly turning light switches on and off. [39]
In the Principal Judgment I did not accept that Mr Quinn's OCD made any significant or substantial contribution to any loss of control on his part when he stabbed Ms Vize. [40] Further, in terms of his present condition, Mr Quinn's OCD has apparently abated as his physical limitations preclude him from giving effect to his compulsions, which consequently reduce their effect on his mental state. [41]
Borderline Personality Disorder involves a "prolonged disturbance of personality function characterised by depth and variability of moods" which typically "involve unusual levels of instability in mood, chaotic and unstable interpersonal relationships, self-image problems, identity problems and [behavioural problems] as well as a disturbance of the individual's sense of self". [42] Attempted and completed suicide are possible outcomes for persons with BPD. According to one of the psychiatrists who gave evidence at the trial, Dr Furst, one of the diagnostic criteria for BPD is a "fear of abandonment" and that "being abandoned or left behind by someone in an interpersonal relationship can be a devastating thing for someone" with the disorder. [43]
As stated, I was not satisfied on the balance of probabilities that any of Mr Quinn's abnormalities of mind, including his BPD, were such that his capacity to control himself was substantially impaired. This was so because there was no reliable evidence from Mr Quinn or any other source concerning his mental state in the period prior to him seizing the knife from the kitchen that he used to stab Ms Vize. [44] However, that does not mean that Mr Quinn's BPD is of no significance to an assessment of his criminality. In the Principal Judgment I accepted that Mr Quinn's BPD "had the capacity to increase his feeling of abandonment and reduce his capacity to control his responses". I also found that Mr Quinn was: [45]
"…distressed about the breakup with Ms Vize and was refusing to accept that it would occur. He was emotionally dependent on Ms Vize and was desperate to contact and be with her. On the two previous nights they had argued. In those circumstances, I accept that [Mr Quinn] may have been "unstable" in the immediate period prior to the stabbing in the sense stated by Dr Furst … and accordingly vulnerable to an impairment of his self-control."
Thus, in this limited sense, Mr Quinn's BPD contributed to his offending. Accordingly, I accept that it operates to diminish his moral culpability for the offence but only to a small degree (see DPP (Cth) v De La Rosa [2010] NSWCCA 194 at [177] citing, inter alia, R v Pearson [2004] NSWCCA 129 at [43]).
In terms of his current mental state, Mr Quinn's BPD is still present although its effect is hard to gauge for someone who is incarcerated in a gaol and is dealing with their quadriplegia. In his evidence Mr Quinn presented as bitter and angry. Apparently, his conduct in custody has been punctuated by difficulties with support staff. I accept that his BPD will make his conditions of custody more difficult, especially given his separation from his family (De La Rosa at [177]).
[5]
Mr Quinn's Quadriplegia
I have already referred to aspects of Mr Quinn's subjective case, specifically his age, educational background as well as his mental condition. As at the time of Ms Vize's murder he had no previous criminal convictions and there was no suggestion that he had engaged in any previous instance of domestic violence. Accordingly, I accepted that he was of good character. However there was evidence at the trial, which I accepted, of him having been suspended from a university in 2009 when he became agitated and aggressive during a lecture. [46] There were also suggestions put to him in cross examination that he had stalked and intimidated a fellow student when he returned after the suspension. However, other than admitting that he blocked that student's path, [47] Mr Quinn did not accept that he acted in that way and it was not otherwise proved beyond demonstrating that he sent a message to one of that student's friends overseas. [48]
It was also evident that Mr Quinn had, and continues to have, very supportive parents. Since his time in custody and throughout the trial Mr Quinn's father has provided with him with great support while no doubt experiencing severe personal anguish.
After he stabbed himself in the neck on 22 July 2013, Mr Quinn remained in a coma until September 2013. He was not charged with murder until 10 September 2013. Bail was granted to allow him to be treated at the spinal injuries unit at the Prince of Wales Hospital. While at the Prince of Wales Hospital, Mr Quinn sent a message via Facebook to Ms Vize's friend, Medina Hasic, on 27 April 2014. [49] The message was disparaging of Ms Hasic and insensitive in relation to its discussion of Ms Vize. The Crown contended that it was intimidatory but I do not accept that beyond the fact that it would have been distressing for Ms Hasic to receive any message from her deceased friend's killer.
Mr Quinn was discharged from the Prince of Wales hospital in June 2014 and his bail conditions were altered to allow him to be treated at Coledale Hospital from that time. His bail was revoked on 9 September 2015 (see Director of Public Prosecutions (NSW) v Quinn [2015] NSWSC 1326). Since that time he has been detained in a hospital facility at Long Bay Correctional Centre.
When Mr Quinn stabbed himself in the neck he partially severed his spinal cord at the C3-C4 level. At the sentencing hearing, there was tendered a report from Dr Lee a specialist in spinal cord injuries. Dr Lee examined Mr Quinn upon his release from the Prince of Wales hospital in June 2014 and re‑examined him on 9 November 2016. In his report, Dr Lee describes Mr Quinn as having "incomplete C3-4 tetraplegia". [50] Mr Quinn uses a powered wheel chair controlled by a chin operated joystick. He is overweight. He manages his bladder with a catheter but requires an enema to clean his bowels every second day. He is vulnerable to deep vein thrombosis having experienced it while in custody. He has some limited movement in his shoulders, his left elbows and fingers. He has no movement in his hips but some limited movement in his knees. Dr Lee noted that there was "worsening power in his elbows and knees" and that this was indicative of a deterioration in his neurological status since 2014. [51]
Dr Lee noted that Mr Quinn takes an array of medications. He said that three to four staff are required to assist Mr Quinn with hoist transfers and he requires "assistance with all activities of daily living". [52] Dr Lee described the level of care that Mr Quinn requires as "[equating] to 24‑hour care". Dr Lee opined that the resources required to care for him do not "exist outside an institution and are not compatible with community living". [53]
Dr Lee identified the health risks that Mr Quinn faces as including "skin issues", a risk of pneumonia as well as heart disease and stroke from sleep apnoea and obesity, kidney disease, autonomic dysreflexia (being a sudden onset of high blood pressure), obesity, fractures, pressure sores, a heightened risk of DVT, urinary tract infections, neuropathic pain, sepsis and suicide. Dr Lee estimates that Mr Quinn has a life expectancy which is approximately in the range 64 to 69% of a normal life expectancy; ie, somewhere between 51 and 55 years.
Dr Lee considered that Mr Quinn had deteriorated since June 2014. In light of his "non‑compliance with therapy interventions" and his dependence on assistance to arrange transfers, Dr Lee concluded that Mr Quinn would require ongoing institutionalisation unless there were some significant psychological and behavioural changes. [54]
At the sentence hearing it was common ground that Mr Quinn's disabilities were such that he would never be accommodated within the general prison population. Instead, he will continue to reside in a hospital facility within the prison system.
Senior Counsel for Mr Quinn, Ms Manuell SC, made a number of submissions directed to what she contended was the virtually "unique position" that Mr Quinn occupies within the criminal justice system by reason of the combination of his mental condition and physical disabilities. She noted that in the Principal Judgment I observed Mr Quinn to be both intelligent and articulate. [55] She contended that Mr Quinn can only obtain intellectual stimulation through electronic means such as television and through social contact with prisoners and family yet these avenues will be significantly limited. In her written submissions, she contrasted his position in gaol with that of a residential care facility in which he would have free access to the internet, and more frequent and longer visits from his parents. [56] Ultimately, Ms Manuel SC submitted that the consequence is that Mr Quinn is a person who will be "imprisoned within his body" for the rest of his life. She contended that when that is coupled with the limitations of the correctional system, Mr Quinn's position was "intolerable".
The circumstances now faced by Mr Quinn, being his mental condition and his quadriplegia, albeit that the latter was his own doing, raise difficult issues for a sentencing court. The starting point to resolve those issues is to observe that a fundamental norm of the legal system is equality before the law. This is not formal equality whereby persons and matters are treated the same irrespective of difference. Instead, as was explained by Gaudron J in Street v Queensland Bar Association (1989) 168 CLR 461 at 571 to 573, equality before the law requires the equal treatment of that which is not relevantly different and the differential treatment of that which is relevantly different in a manner that reflects that difference.
Next, it is necessary to note the purposes for which a court imposes a sentence, as stated in section 3A of the Sentencing Act, in the context of Mr Quinn's crime and personal circumstances, including his quadriplegia. Those purposes include the specific deterrence of Mr Quinn from committing an offence, the protection of the community and the need to promote the rehabilitation of offenders (s 3A(a), (c), (d)). Were it not for Mr Quinn's physical disabilities then I consider that there would be a need to specifically deter him from committing an offence and a need to protect the community. Although he had no prior criminal convictions, the nature of his mental condition is such that there would have been a significant risk of him engaging in serious anti-social conduct if the same or similar circumstances were to reoccur (see De La Rosa at [177] citing R v Israil [2002] NSWCCA 255 at [24]). However, Mr Quinn's physical disabilities are such that he does not represent a danger to the community other than possibly his carers.
Section 3A(b) of the Sentencing Act identifies the need to deter others from committing similar offences as one of the purposes for which a court may impose a sentence. Ms Manuell SC submitted that general deterrence should play a significantly diminished role in a case such as this where Mr Quinn's unsuccessful suicide attempt is inextricably linked to his murder of Ms Vize and he was otherwise suffering from BPD. I do not agree. Sadly, the killing of a woman as a consequence of her decision to leave a relationship is a persistent evil (see, for example, R v Maglovski (No 2) [2013] NSWSC 16). It is not uncommon in such cases that the offender was experiencing extreme distress and their personal circumstances warrant some sympathy. However, the necessity for a sentence to reflect the need for general deterrence in such cases remains high, even in cases as extreme as this one.
Section 3A(g) of the Sentencing Act specifies that recognition of the harm done to the victim and the community from the offence is one of the purposes for which a court imposes a sentence. This has already been discussed and applies irrespective of Mr Quinn's circumstances.
Section 3A(a) of the Sentencing Act identifies the necessity to ensure that an offender is adequately punished for the offence as one of the purposes for which a court imposes a sentence. Section 3A(f) identifies the need to denounce the conduct of an offender as another purpose for which a court imposes a sentence. Section 3A(e) specifies that making an offender accountable for their action is also one of the purposes of sentencing. Ms Manuell SC submitted that Mr Quinn has inflicted on himself a "far greater punishment than any Court could inflict on him" and, as already noted, that Mr Quinn will "be for the rest of his life imprisoned within his body". [57] In her written submissions she contended that public awareness of the extent of his injuries ameliorates the extent of any denunciation that may be required. [58]
In considering this submission two lines of authority are engaged. The first concerns so called "extra curial punishment". In some circumstances an offender who suffers harm from a third party as a consequence of their offending, such as a vigilante, will have their penalty mitigated so that overall they are adequately and not excessively punished (see for example R v Daetz [2003] NSWCCA 216). However I am bound by authority not to afford any leniency on this account where the harm was deliberately self‑inflicted (Christodoulou v R [2008] NSWCCA 102 at [42] per Grove J with whom Johnson J agreed; Betts v R [2015] NSWCCA 39).
The second line of authority concerns the hardship occasioned to Mr Quinn from being in custody while experiencing his mental and, most significantly, his physical disabilities. Where matters of that kind have the result that imprisonment "will be a greater burden on the offender" then they warrant leniency (R v Smith (1987) 44 SASR 587 at 589). I have already discussed the particular hardships that will be occasioned to Mr Quinn from incarceration in a prison hospital compared to a care facility. This is compounded by his BPD. I have no doubt that a gaol sentence will seem like an eternity to Mr Quinn. He will only have his thoughts to contend with. Given his circumstances, the differential impact of the effect of custody on Mr Quinn is a matter that warrants substantial leniency.
[6]
Other Sentencing Factors
Section 21A(2) of the Sentencing Act lists a series of aggravating factors the Court is to take into account in determining the appropriate sentence. These factors cannot be considered as aggravating the offence if they are elements of the offence. Section 21A(3) lists a series of mitigating factors.
The Crown pointed to four potentially aggravating factors, the first two of which were that the offence involved the actual use of violence (s 21A(2)(b)) and the use of a weapon (s 21A(2)(c)). However, the Crown accepted that they were essential elements of the offence and should not be considered. The third condition was that the offence was committed in the "home of the victim or any other person". It was contended that the crime was committed in Mr Quinn's home but that it was also the home of his family and a temporary home for Ms Vize. As a matter of fact I do not accept that it was committed in a temporary home of Ms Vize. Although there is some debate as to the proper interpretation of s 21A(2)(eb) of the Sentencing Act, no case suggests that it extends to a home occupied by the offender but not the victim (see Aktar v R [2015] NSWCCA 123 at [52ff] especially at [60] per Wilson J).
The fourth aggravating factor suggested by the Crown was that the crime was part of some planned criminal activity (s 21A(2)(n)). It follows from the earlier finding (at [16]) that this aggravating factor has not been established.
Six mitigating factors were raised on behalf of Mr Quinn. The first two were that he had no prior convictions and was a person of prior good character (ss 21A(3)(e) and (f) respectively). I accept that these factors are made out although they are diminished by his conduct at the university in 2009.
The third and fourth factors were that he was unlikely to offend and had good prospects of rehabilitation (ss 21A(3)(g) and (h) respectively). It follows from the earlier finding that I accept these matters, although they mainly follow from his physical limitations.
The fifth mitigating factor concerned the conduct of the trial. Section 21A(3)(l) provides that the degree of pre-trial disclosure by the defence is a mitigating factor in sentencing. Section 22A(1) expands upon this by enabling a court to impose a lesser penalty than would otherwise be the case having regard to the degree to which the administration of justice has been facilitated by an offender's defence, including by disclosures made prior to or during the trial. However, any such lesser penalty must not be disproportionate to the nature and circumstances of the offence (s 22A(2)).
Ms Manuell SC submitted that the manner in which the trial was conducted on her client's behalf meant these provisions were enlivened. I agree. In many respects the trial was not an easy one for the parties. The sitting hours of the Court were reduced to accommodate Mr Quinn's impaired capacity. In those circumstances if every Crown witness had been required for an exhaustive examination on all issues the trial may still be continuing. Instead, in advance of the trial, the Crown and the Court were advised by the defence what the issues in the trial would be. During the course of the trial many witnesses statements were tendered without the author being required to attend. The cross‑examination of Crown witnesses was conducted efficiently. Overall I am satisfied that the defence facilitated the administration of justice. Some leniency is to be afforded on this account.
The sixth potentially mitigating factor concerns Mr Quinn's remorse. Section 21A(3)(i) of the Sentencing Act provides that the remorse of an offender is a mitigating factor, but only if the offender has provided "evidence that he or she has accepted responsibility for his or her actions" (s 21A(3)(i)(i)) and "has acknowledged any injury, loss or damage caused by his or her actions or made reparations for such injury, loss or damage" (s 21A(3)(i)(ii)). Throughout his evidence at the trial Mr Quinn expressed regret and sorrow for Ms Vize's death but he did not in any real sense accept it was his responsibility.
At the sentence hearing a letter dictated by Mr Quinn was tendered by consent. Mr Quinn asked the Court to accept it as a "letter of remorse". In that letter he states that he has "taken a life, the life of a daughter, a sister, a niece, a friend" as well as the possibilities for Ms Vize of "motherhood", a "satisfying and meaningful career" and "grandchildren for her parents". He also expresses regret for the hardship that he has occasioned to his own family. Mr Quinn states that he is "so very deeply, so very sorry".
I accept that Mr Quinn regrets both the death of Ms Vize and the terrible hardship that has befallen her family and his own family. However, having heard him give evidence over a number of days I do not accept the belated statement of personal responsibility that is set out in his letter. The remorse described in s 23A(3)(i) is one which involves Mr Quinn accepting that Ms Vize's death and the suffering that ensued were caused by his actions in deliberately stabbing her. I am not satisfied that he accepts that.
[7]
Conclusion
One function of a sentencing court is to characterise the degree of seriousness of the offence relative to the range of circumstances that can constitute the crime in question, in this case murder (Mulato v R [2006] NSWCCA 282 at [37] and [46]). I have already outlined the circumstances of Ms Vize's murder, including the relevant mitigating and aggravating factors. As stated, Mr Quinn intended to kill Ms Vize and did so out of distress that she was leaving him. It was not established that the murder was premeditated but equally it cannot be characterised as spontaneous. Mr Quinn may have been in an unstable mental state at the time he killed Ms Vize but it was not shown that his ability to control his actions was relevantly affected. This case is a serious example of the infliction of extreme domestic violence upon women. Overall, I am satisfied that the offence falls in the middle of the range of objective seriousness for the offence of murder .
In her written and oral submissions Ms Manuell SC contended that the Court should make a finding of "special circumstances" and reduce Mr Quinn's non‑parole period relative to his parole period beyond the ratio provided for in s 44(2) of the Sentencing Act. Ms Manuell SC submitted that this was warranted having regard to Mr Quinn's medical condition in that an earlier release on parole would enable him to be accommodated at a care facility. [59] I have considered this submission carefully. However, given that Mr Quinn's psychological condition and physical disabilities have weighed heavily in my determination of the appropriate sentence, I do not consider that any reduction in his non‑parole period resulting from a finding of special circumstances can be justified given the criminality involved (R v Fidow [2004] NSWCCA 172 at [18] per Spigelman CJ). Otherwise, I note that the sentence I will impose will allow for a long period of supervision on parole.
Murder is the most serious criminal offence known to the law. On the morning of 22 July 2013, Michael Quinn viciously attacked the one person outside of his family who believed in him and loved him. He did so because she wanted to exercise the freedom to live her own life. In doing so he killed her, destroyed his own life and devastated two families.
Mr Quinn, the offence of murder is a "serious violence offence", as defined by s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW). I am obliged by s 25C of that Act to advise you of the existence of that legislation and of its application to the offence you have committed.
Michael Quinn, I note that you have already been convicted of the murder of Cherie Vize. You are now sentenced to a term of imprisonment of twenty years.
Pursuant to s 44(1) and s 44(2) of the Sentencing Act, I set a non-parole period of fifteen years commencing on 9 September 2015, and an additional term of five years commencing 9 September 2030 and ending on 8 September 2035.
The sentence will be taken to have commenced on 9 September 2015. The offender will be eligible for release on parole on 9 September 2030 and the sentence will expire on 8 September 2035.
[8]
Endnotes
Principal judgment ("PJ") at [171]
PJ at [178]
PJ at [145]
PJ at [135]
PJ at [135], [142] and [152]
PJ at [155]
PJ at [169]
PJ at [41]
PJ at [41]
PJ at [42]
PJ at [42]
PJ at [43]
PJ at [95]
PJ at [106] to [114]
PJ at [103]
PJ at [125], [116] and [100]
PJ at [43]
PJ at [44]
PJ at [75ff]
PJ [44] and [79]
PJ at [62]
PJ [62]
PJ [62]
PJ [63]
PJ [226]
PJ at [229]
PJ at [230]
PJ at [309] to [310]
PJ [79]
PJ at [2]
Introduced by the Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 (NSW) which applies to the determination of a sentence whenever committed; cl 5 of Schedule 1
PJ at [140]
PJ at [4]
PJ at [206]
PJ at [205] to [206]
PJ at [286]
PJ [294], [302] and [312]
PJ at [236]
PJ at [48]
PJ at [304]
T 17/8/16 at p 313.29
PJ at [237]
PJ at [237]
PJ at [311] to [313]
PJ at [306]
PJ at [194ff]
PJ [200]
PJ [200] to [202]
Outline of Crown submissions on sentence at [101] to [102]
Dr Lee report 17/11/2016, p 2 at [7]
Dr Lee report 17/11/2016, p 4 at [26]
Dr Lee report 17/11/2016, p 5 at [27]
Dr Lee report 17/11/2016, p 5 at [28]
Dr Lee report 17/11/2016, p 8 at [47]
PJ at [170]
Sentencing Submissions - Defence at [53]
T 18/11/16 at p 8.5
Sentencing Submissions - Defence at [27]
Sentencing Submissions - Defence at [53]
[9]
Amendments
05 December 2016 - [55] - s 21A(3)(n) amended to read s 21A(2)(n)
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Decision last updated: 05 December 2016