R v Villalon

REMARKS ON SENTENCE 1 HIS HONOUR: Michael Villalon has been found guilty by a jury of the manslaughter of his stepfather Keith Owen Chaney on 28 February 2012. The jury acquitted him of the deceased's murder. 2 The maximum penalty for the crime of manslaughter is imprisonment for 25 years. 3 The crime of manslaughter involves the felonious taking of human life and has always been recognised by the law as a most serious crime: R v Hill (1981) 3 A Crim R 397 at 402. The value the community places upon the preservation of human life is reflected by the need to have the conduct denounced by a sentence appropriate to the circumstances of the case: R v Macdonald (NSWCCA 12 December 1995, unreported). The starting point in the present sentencing exercise, as in all offences of manslaughter, is that the life of Keith Owen Chaney has been unlawfully taken: R v Blacklidge (NSWCCA 12 December 1995 unreported). 4 During the trial and proceedings on sentence, Mr G Tabuteau appeared for the Crown and Ms J Manuell SC for the offender. 5 The offender did not give evidence during the trial or the proceedings on sentence. 6 It is my duty to determine the facts relevant to sentencing the offender. My view of the facts must be consistent with the verdict of the jury and the findings of fact I make against the offender must be arrived at beyond reasonable doubt: R v Isaacs (1997) 41 NSWLR 374. Matters of mitigation may be proved on the balance of probabilities: R v Pilley (1991) 56 A Crim R 202. 7 Although the jury was instructed that in order to find the offender guilty of murder, the Crown was obliged to negative self-defence and provocation beyond reasonable doubt, the real issue in the trial concerned the partial defence of substantial impairment by abnormality of mind which I am satisfied that the offender established on the balance of probabilities. 8 Accordingly, the offender is to be sentenced upon the basis that at the time he killed the deceased he was substantially impaired by an abnormality of mind arising from a pre-existing mental condition and the impairment was so substantial as to warrant the offender's liability for murder being reduced to manslaughter. 9 In order to make findings of fact that are consistent with the jury's verdict, it is necessary to refer briefly to some of the evidence in the trial. 10 The offender was born in the Philippines on 29 August 1984. He came to Australia on 1 April 2009 to live with his mother and the deceased at Mascot. The relationship between the deceased and the offender subsequently deteriorated and the deceased became antagonistic towards him. I am satisfied on the balance of probabilities that the deceased's behaviour involved nagging, threats, physical assaults, and inappropriate behaviour. The assaults included the deceased punching the offender in the jaw in about late December 2011 and on another occasion hitting him with a towel. The deceased hit him on other occasions. 11 The deceased displayed pornographic material in the lounge room of the home and made the offender watch pornographic videos and convert them into CD's. The offender found the deceased's behaviour to be offensive and considered him to be a pervert. The offender was particularly concerned about the deceased's inappropriate sexual conduct towards Chelsy, his younger sister. 12 The offender had been a happy outgoing young man in the Philippines who had completed a Bachelor of Science degree in computer science and was studying nursing. He was an active member of a church youth group. After being in Australia for about three months, the offender's personality began to change. His disclosures to relatives included hearing a woman crying or sounds inside the house such as a baby crying, hearing voices and feeling that something was falling out of the sky. He believed that the deceased had buried a lady under the house and was contaminating the water in the fridge. His medical records (ex N) revealed that he told a doctor on 1 July 2009 that when he slept he felt that his feet were biting and his hands had been cut. 13 On the morning of 28 February 2012, a dispute arose between the offender and the deceased about the bathroom door and the front and back doors of the dwelling being left open or closed. The deceased had often argued with him about the doors. 14 The deceased went to touch the offender in the chest area, so the offender pushed him back. He struck the deceased with a figurine, then stabbed him with a knife a number of times in the abdomen, then below the right eye, penetrating through the spinal cord, which was partly severed. This was the fatal blow due to consequent neurological shock. The offender left the knife in situ. 15 Using a second knife, the offender inflicted deep wounds to the deceased's chin and neck. The chin had a vertical wound of 13cm, and there was a horizontal cut across the neck, which had severed the trachea, the oesophagus, the right carotid artery, and the internal jugular vein. On it's own, this would have been a fatal injury. 16 The offender then used a hammer to inflict seven lacerations to the top of the head. Three of the lacerations involved skull fractures. There were other lesser injuries, including defence-type injuries to the deceased's left arm. The offender's attack upon the deceased was deliberate, brutal and sustained. I am satisfied beyond reasonable doubt that he intended to kill the deceased. 17 The forensic psychiatrists Dr Allnutt, Dr Westmore and Dr Furst, all of whom gave evidence during the trial were of the opinion that the offender was suffering from an underlying psychotic illness when he killed the deceased. Dr Allnutt, who was called in the Crown case, believed that the psychotic illness was either a schizophreniform disorder or schizophrenia. Dr Allnutt considered that as a consequence of the underlying psychotic illness, the offender experienced an abnormality of mind (persecutory beliefs, referential thoughts and auditory phenomena). 18 When dealing with the question of impairment, Dr Allnutt told the jury (T401 L45-50; T402 L1-10; T 402 L31-38): "If it is accepted that at the material time that at least some of the beliefs about the deceased were erroneous or distorted by a paranoid bias, then there are grounds to conclude that at the material time that the alleged offending occurred the defendant was suffering from an underlying condition, that is, that he had an undiagnosed or early signs of psychotic disorder that, as a consequence of his underlying condition, he experienced an abnormality of mind, persecutory beliefs, referential thoughts and auditory phenomena around that time. It is probable that his abnormality of mind impacted on his capacity to understand events, making illogical and erroneous interpretation of some events relating to the deceased that led him to believe that the deceased was conspiring with others to have him harmed in a serious manner. That the deceased was putting various medications into the drinking water and milk, attempting to harm his mother, in hearing a baby cry next door or hearing a woman saying, 'Help help'. It is probable that these beliefs and perceptions would have contributed to a sense of justification with regard to his attack on the deceased. Driven by underlying feelings of anger, fear and indignation at what he had seen as provocative behaviour on the part of the deceased. On this basis, he would be regarded as compromised in his capacity to judge right from wrong, but his capacity was not completely negated given evidence of knowledge of wrongfulness immediately afterwards." 19 Dr Allnutt concluded that "it is more likely than not that [the offender] commenced experiencing psychotic symptoms a number of years ago" and "was manifesting symptoms of a developing mental illness" (T 401). 20 Dr Westmore had no doubt that the offender was mentally ill at the time he killed the deceased. His differential diagnosis was a paranoid schizophrenic illness or a psychosis occurring in the context of a depression. Dr Westmore was of the opinion that the offender's medical records (ex N) revealed in 2009 symptoms of a deteriorating mental state which transpired to be a psychotic illness and an abnormality of mind. 21 Dr Westmore said that the abnormality of mind would have impaired the offender's capacity to think normally. Dr Westmore opined that the offender's capacity to interpret, deal with, understand and manage whatever situation he was in would have been compromised. His capacity to fully assess what was occurring, comprehend it and deal with it in an effective way was impaired. His thoughts and feelings about the deceased because of his disturbed mental state would have influenced his behaviour. Dr Westmore was of the opinion that there was a loss of control component in the offender's behaviour resulting from his mental illness. 22 Dr Furst's primary diagnosis was that the offender was suffering from schizophrenia, paranoid type at the time of the deceased's death. Dr Furst said that the offender's underlying schizophrenic illness significantly adversely affected his capacity to understand ordinary everyday events; the reason being that the offender may misinterpret things and look at them with a paranoid perspective. He opined that the underlying schizophrenic illness probably impacted on the offender's ability to reason about his actions and their wrongfulness. Dr Furst was of the opinion that the offender knew that he was killing the deceased and probably realised after the killing he had done the wrong thing. Dr Furst considered that the offender's lack of capacity to control himself was his clearest impairment. Dr Furst told the jury that the offender's impairment was significant. 23 The jury was satisfied on the balance of probabilities that at the time the offender killed the deceased, his capacity to understand events, to judge whether his actions were right or wrong and to control himself was substantially impaired by an abnormality of mind arising from an underlying schizophrenic illness. The jury was further satisfied that the impairment was so substantial as to warrant (applying community standards) his liability for murder being reduced to manslaughter. 24 The offender's substantial impairment reduces his moral culpability for the killing: s 21A(3)(j) Crimes (Sentencing Procedure) Act 1999. However, it neither negates his moral culpability entirely: R v Dawes [2004] NSWCCA 363 at [34], nor does it entirely excuse his deliberate acts which were committed with an intention to kill: Blacklidge at p5. 25 The deceased's antagonistic conduct towards the offender which involved nagging, threats, physical assaults and inappropriate behaviour allows in my view for an assessment of provocation under s 21A(3)(c) Crimes (Sentencing Procedure) Act. Provocation by the deceased is a mitigating factor that I take into account in determining the appropriate sentence. 26 Another matter that mitigates the seriousness of the offence is that it was not planned but was committed on the spur of the moment: s 21A(3)(b) Crimes (Sentencing Procedure) Act. However, the offence is objectively serious as the offender unlawfully took the deceased's life. 27 I take into account as a mitigating factor that the offender does not have a record of previous convictions in the Philippines or in Australia: s 21A(3)(e) Crimes (Sentencing Procedure) Act. When the offence was committed he was 27 years old and is now 30 years old. The offender's academic record, membership of a church youth group and his relatives' evidence during the trial lead me to conclude that he was a person of good character, which is a mitigating factor: s 21A(3)(f) Crimes (Sentencing Procedure) Act. 28 Remorse as a mitigating factor is qualified by s 21A(3)(i) Crimes (Sentencing Procedure) Act which requires the offender to provide evidence that he has accepted responsibility for his actions and has acknowledged any injury, loss or damage caused by them. By his plea of guilty to manslaughter, the offender has accepted responsibility for his offending. Upon all of the evidence, I am unable to find on the balance of probabilities that the offender has acknowledged the injury, loss or damage caused by his actions. His sentence is not to be increased for that, but no allowance in mitigation can be made for remorse. 29 Whilst the proceedings were in the Local Court, the offender's solicitor wrote on 12 December 2012 to the Director of Public Prosecutions enclosing a copy of Dr Westmore's report and advised that the offender intended to plead not guilty to murder but guilty to manslaughter on the basis of substantial impairment. The offender's intention to plead guilty to manslaughter was confirmed at the committal hearing on 2 April 2013. The Director of Public Prosecutions rejected the offender's offer to plead guilty to manslaughter in full satisfaction of the indictment. Upon arraignment on 7 June 2013, the offender pleaded not guilty to murder but guilty to manslaughter which he confirmed before the jury in the first trial and the trial before me. In these circumstances, I assess the utilitarian value of the plea to be 20 per cent. 30 The offender's schizophrenic illness has the consequence that he is an inappropriate vehicle for making an example for others. Nevertheless, considerations of general deterrence are not rendered completely irrelevant: R v Engert (1995) 84 A Crim R 67; DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; (2010) 205 A Crim R 1; [2010] NSWCCA 194. I do, however, give little weight to general deterrence. 31 The Crown invites me to find that there is a significant risk of re-offending and future dangerousness. Ms Manuell submits that the offender's risk of re-offending is low. 32 A finding of future dangerousness does not need to be established beyond reasonable doubt: R v SLD [2003] NSWCCA 310; (2003) 58 NSWLR 589. It is sufficient if the Crown establishes that there is a risk of re-offending: R v Harrison (1997) 93 A Crim R 314. 33 In a report dated 25 August 2014, Dr Furst referred to the evidence given at trial that the prodromal stage of schizophrenia is the most dangerous period. He stated that the statistics indicate a much reduced rate of homicide and serious violence in people who have been diagnosed with schizophrenia and treated. Dr Furst cautioned (p6): "However, the overall rate of homicide is still above community baseline rates, approximately three-fold, suggesting the need for ongoing monitoring and assertive treatment." 34 Dr Furst reported that the offender's mood has improved and he is more reactive. He was no longer showing any signs of delusions, hallucinations or acute mood disturbance. He has improved insight and there were no indication that he had been violent, threatening or had self-harmed since his arrest. The offender's current medication is Seroquel XR (Quetiapine) 400mg orally at night. 35 Dr Furst observed that the offender's illness had responded better to treatment with Seroquel XR than previous antipsychotic medications with noted improvements in his mood. He said that the offender does not entertain any current violent fantasies. He considered given the severity of the offender's delusional beliefs, persistence of psychotic symptoms for over 18 months after his arrest, and fluctuating levels of insight, a Community Treatment Order was probably warranted. Dr Furst described the offender's insight as "partial", but said that the offender accepted the need for future psychiatric treatment with medication and community follow-up. In Dr Furst's opinion, the overall risk of re-offending was low, especially if the offender adheres to the proposed psychiatric treatment plan upon release that is detailed at page 7 of the report. 36 Affidavits sworn by Maria Villalon, the offender's mother (ex 10), Chelsy Villalon, his sister (ex 9) and Angelina Le Mene, his aunt (ex 11) demonstrate that the offender continues to have the support of his family. Since the offender's trial, these family members have a better understanding of schizophrenia and the offender's need for ongoing psychiatric care and management. Upon release, the offender will be able to live with Chelsy and her boyfriend. 37 I am satisfied that the offender's risk of re-offending is low provided he continues to take his medication and adheres upon release to the proposed psychiatric treatment plan. Much will depend upon the support of his family and the offender's continued acceptance that the maintenance of his medication and psychiatric treatment are essential. In these circumstances, the offender's mental illness does not eliminate the need for specific deterrence to which I give modest weight in the sentence. 38 During the proceedings on sentence, various cases were cited by counsel. I have found all of this material helpful, but each case depends on its own facts. 39 I find that special circumstances exist that justify a variation in the statutory ratio between the non-parole period and the balance of the term of the sentence being the offender's need for ongoing psychiatric treatment. I have determined that a non-parole period of 5 years 6 months is the minimum period that the offender must spend in custody in order to appropriately reflect the criminality involved in the offence: R v Simpson [2001] NSWCCA 534, (2001) 53 NSWLR 704 per Spigelman CJ at [63]. 40 Taking into account all factors that are relevant to sentence, the appropriate undiscounted starting point of the sentence I consider is 10 years. The sentence is reduced by 20 per cent to 8 years. 41 The offender has been in custody since 28 February 2012 which is the agreed date for the commencement of the sentence. 42 Michael Villalon for the offence of manslaughter, I convict you. I sentence you to a term of imprisonment of 8 years with a non-parole period of 5 years 6 months commencing on 28 February 2012 and expiring on 27 August 2017 with a balance of term of 2 years 6 months commencing on 28 August 2017 and expiring on 27 February 2020. 43 The earliest date that you will be eligible to be released on parole is 27 August 2017. 44 The offender's release to parole and conditions of that parole are a matter for the New South Wales State Parole Authority, but I recommend that a condition upon his release is his adherence to a community based psychiatric treatment plan. I ask the Registrar of the Court to forward a copy of these sentencing remarks and Dr Furst's report dated 25 August 2014 to the State Parole Authority. 45 I ask Ms Robinson to advise the offender of the Crimes (High Risk Offenders) Act 2006 and of its application to the offence for which he has been sentenced.