Regina v Connolly

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

Remarks on Sentence 1 HIS HONOUR: The prisoner was indicted in that on 14 August 2000, Geoffrey William Connolly did murder Ji Wang Yin Connolly. To that indictment the prisoner pleaded not guilty. A trial date was appointed for 27 August 2001 with an estimated duration of two weeks before Mr Justice Barr. On 6 July 2001, the prisoner was re-arraigned. He then pleaded not guilty to murder but guilty to manslaughter, which plea was accepted in full satisfaction of the indictment. He was remanded in custody for sentence until today. 2 The basis of the acceptance and indeed the entry of that plea was based on medical evidence establishing that his capacity to control himself was substantially impaired by an abnormality of the mind, arising from an underlying condition so as to entitle the prisoner to warrant liability for murder being reduced to manslaughter. An underlying condition is defined by s23A of the Crimes Act 1900 ('the Act') meaning; "A pre-existing mental or physiological condition other than a condition of transitory kind". 3 It should be noted that for the purposes of s23A of the Act, if a person was intoxicated at the time of the acts or omissions, causing the death concerned and the intoxication was self-induced, the effects of that self induced intoxication are to be disregarded for the purposes of determining whether the person is not liable to be convicted of murder, by virtue of the section. That of course does not disentitle the prisoner to have the matter taken into account on sentence. 4 The prisoner was employed for some twelve years as a part-time book keeper for a plaster business, and during that time he became close friends with the two owners of the business. 5 In 1995 the prisoner divorced his first wife after forming deep suspicions about her as to her fidelity, those suspicions having no foundation whatsoever. 6 Some twelve months later, the wife of one of his employers put him in contact with the deceased, who then lived in China. They began to correspond and to meet and then married. They then underwent the lengthy process of migration of the deceased to Australia, who on arrival to Australia went to live with the prisoner in a rented unit. 7 Initially, the relationship appeared very happy and positive, but then a couple of months before the death of the deceased, the prisoner told one of his employers that he suspected, again without foundation, that the deceased was being unfaithful to him, and that she was proposing to leave. Some three weeks before her death, the prisoner told that same employer that he was considering killing her. The matter was at that stage passed off by the employer, as though the prisoner was joking. 8 The prisoner rang one of his employers and told him that he had killed the deceased and left that same message on his sister's answering machine. The other employer rang the prisoner and was told the same. Police who attended the prisoner's residence were told by the prisoner, "I think I've killed my wife". 9 The deceased was found in the bedroom. She had severe chest wounds and a large knife was found embedded in her back. There were no signs of life, and attempts at revival were abandoned.

10 Shortly prior to the death of the deceased, the prisoner said that his reason for suspecting his wife was that she got home from work too early and that she must have been given a lift. He became depressed. Evidence admitted before me shows that at the time the prisoner was a little more than moderately affected by alcohol.

11 The prisoner engaged a licensed inquiry agent to gather evidence that his wife, Mrs Connolly, was having an affair, and was borrowing some money from one of his employers for that purpose. The private inquiry agent found no evidence. The prisoner commenced surveillance of the deceased, as indeed he had done with his previous wife.

12 The prisoner had told a number of people that the deceased would leave him when her adolescent daughter arrived from China. He formed an obsession on one occasion when, following the deceased washing herself, he saw what he thought was semen in a toilet bowl.

13 The prisoner also sought medical advice from a local general practitioner to see if there was any test available to see if his wife was poisoning him. The prisoner admitted to that doctor that he had no proof of infidelity. In the conversation that one of the employers had with the prisoner, he was told:

"I killed her. We had an argument and she told me she didn't love me, didn't care for me and virtually told me to piss off. I lost it and I killed her. I stabbed her three times or whatever still with the knife in her".

14 Evidence admitted before me showed the cause of death to be multiple stab wounds, the principal wound penetrating the left chest wall, perforating a lobe of the left lung, left ventricle, the mitral valve and left atrium, and there was also significant blood loss.

15 In interviews with police, the prisoner said he recalled the telephone conversation but that he did not remember stabbing the deceased. He told the police of his suspicions.

16 The prisoner has had a prior history of minor property damage and of traffic offences, and there is evidence of assaulting police when his condition was exacerbated by alcohol. He has been in custody since 14 August 2000.

17 The evidence of the substantial impairment by an abnormality of mind arising from an underlying condition, was initially provided by Dr Bruce Westmore. Dr Westmore noted the development of the condition in both marriages, the checking up, the examination of underwear, and on the material examined by Dr Westmore, there was evidence of the diagnoses of a delusional disorder. Indeed, Dr Westmore considered in February 2001 that the prisoner had available to him a defence of mental illness.

18 For the Crown, forensic psychiatrist Dr Olav Neilssen noted the similarity of the prisoner's obsession about each of his wives, and was unable to accept that his belief was delusional. Dr Neilssen opined that the prisoner, as well as suffering from an alcohol abuse disorder, was suffering from a delusional disorder and did not consider that the defence of mental illness was available to him. Dr Neilssen found that the prisoner's delusional belief was an abnormality of the mind which arose from an underlying condition of that delusional disorder, namely jealousy, which resulted in the substantial impairment of his capacity for judgment and self-control.

19 Dr Neilssen also opined that the offender's false belief was of sufficient intensity and duration to meet the accepted criteria for a diagnosis of delusional disorder jealous type according to the American DSM4.

20 The plea of guilty proves the elements of the facts, proof that would result in the prisoner being found guilty of murder. At the time of the acts causing the death concerned, the prisoner's capacity to understand events, or to judge whether his actions were right or wrong, were substantially impaired by an abnormality of the mind from the underlying condition being the delusional disorder, that impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

21 I find beyond reasonable doubt that it was the act of the prisoner which caused the death of the deceased, and that such an act was a deliberate one carried out with the intention to kill or to inflict really serious bodily injury.

22 I find that on the evidence before me, relying in particular on the evidence of Dr Neilssen, as to the substantial impairment on the onus required of the prisoner, that his impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

23 The plea of guilty requires the Court to take into account the fact of the plea of guilty, and when the offender pleaded guilty.

24 It is conceded by the Crown that the plea of guilty was entered at the first opportunity available to the prisoner to enter that plea.

25 I therefore find the prisoner guilty of manslaughter, the penalty for which is twenty-five years.

26 In examining the sentence which the Court must consider, I have taken into account the material admitted on the tender of the Crown as to the medical condition of the prisoner. In addition, I have examined a report tendered on behalf of the prisoner by Dr Graham Starmer of the Psycho-Pharmacology Research Unit, University of Sydney, dated 1 February 2001, which shows that at about the time of the death of the deceased, the prisoner had a blood alcohol concentration of between .090 grams per hundred millilitres and .083 grams per hundred millilitres, which clearly on the evidence before me would have had some effect on the judgment of the prisoner.

27 I have also examined a report prepared by Ms Katherine Barrier, Psychologist, of 28 May 2001, which examines and gives an opinion on the state of mind of the prisoner. She finds that the prisoner was a binge drinker at times, although he did admit that his previous criminal behaviour occurred whilst he was intoxicated. 28 Ms Barrier sets out examples of how acts of affection on the part of the deceased towards the prisoner were taken by him to be entirely without affection, and merely acts which would enable her to get out and fulfill the delusional relationship the prisoner thought she had formed.

29 Psychological testing by Ms Barrier showed that the prisoner has a pervasive apprehensiveness, intense and variable moods with prolonged periods of dejection, self-depreciation and episodes of withdrawal resulting in unpredictable anger. He has a longstanding expectation that others will be rejecting or disparaging, and he suffers from self-defeat and self- abnegation. Despite a longing for warmth and acceptance, he withdraws to maintain a safe distance from close emotional involvement. He possesses feelings of low self-worth and may contemplate a pitiful futile state of his identity. He has learnt to expect ridicule and derision, and he appears to detect the most minute traces of indifference expressed by others. Anticipating delusion, he may undermine potentially positive opportunities with impulsive hostility.

30 Ms Barrier further opined that the prisoner could be described as an inadequate apprehensive individual with low self-worth. The prisoner demonstrated to Ms Barrier no insight and although not a danger to the general public, his delusional beliefs are well entrenched, and he will continue to be a significant danger to any woman with whom he forms an intimate relationship. Psychiatric intervention and treatment may assist. He has commenced drug and alcohol counselling.

31 The prisoner also attached, on his behalf, a number of character references which show him to be held in high esteem by the people whose references were tendered.

32 He has expressed to them great sorrow for his actions, and I find that he is remorseful for his actions which resulted in the death of the deceased.

33 The prisoner is undergoing treatment, and whilst in custody, he also suffers from severe acoustic impairment.

34 In examining the appropriate penalty which the Court must impose, it is necessary to look at the objective seriousness of the offence. There is a need to deter, specifically the prisoner and generally the public, from committing such offences, although obviously such deterrent factors are given not so much weight in the light of the psychological disorder from which he suffers.

35 Manslaughter is the most difficult of all offences to assess for sentencing, as that offence covers an almost infinity variety of circumstances. The Courts of this state and indeed of the land stresses the fact that what is involved in every case of manslaughter is the felonious taking of human life, and that starting point is a key element in the assessment of the gravity of the objective circumstances of the case: see R v Hill [1981] 3 ALR 397, per Street CJ at 402; and R v Troja (Unreported, NSWCCA, 16 July 1991), per Kirby P.

36 It needs to be remembered, as cited in an unreported decision of R v Blacklidge (Unreported, NSWCCA, 12 December 1995), wherein the then Chief Justice Gleeson, with the concurrence of the other members of the Court, held at page 3 of that judgment:

"Some forms of manslaughter such as that with which we are presently concerned involved conduct which would amount to murder except for the presence of some recognised mitigating circumstance. Other forms of manslaughter sometimes referred to as "involuntary" do not inflict grievous bodily harm".

"It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various and the range of degrees of culpability are so wide that it is not possible to put to any established sentencing tariff which can be applied to such cases of all crimes manslaughter throws up the greatest variety of circumstances affecting probability".

38 The Crown has submitted, and I accept the submission, that a sentence should not be increased beyond what is proportional to the crime to merely extend a period of protection to society Veen (No. 1) (1979) 143 CLR 458 at 467, but as heard in Veen (No. 2) (1987-1988) 164 CLR 465; "A sentence should be proportionate to the gravity of the offence unless the person's history warrants some departure from the principal".

39 It is submitted on behalf of the prisoner, and this is accepted by the Crown, as I have indicated, the prisoner entered his plea at the first opportunity. The guideline judgment of Crown v Thompson and Houlton (2000) 49 NSWLR 383, a decision of the Court of Criminal Appeal; "The utilitarian should sound in a discount of between ten and twenty five percent."

40 And more recently, in R v Carter (Unreported, NSWCCA, 27 June 2001), the Court has further held that: "A discount of 25 percent should ordinarily be given when a plea of guilty is entered at the first opportunity".

41 It being remembered in this case that, as submitted by Ms Flannery, on behalf of the prisoner, the prisoner gave up on the opportunity of being found not guilty, on the grounds of mental illness, which on one of the reports tendered by the Crown was potentially available as a successful defence.

42 I consider in the whole of the circumstances of this case, the Crown has not sought to argue to the contrary, that this is an appropriate case for the granting of the discount of twenty-five percent from the sentence that I would have otherwise imposed.

43 I now have to look at the question of special circumstances under the provisions of s44(2) of the Crimes (Sentencing Procedures) Act 1999. It is clear that the conduct of the prisoner in the past, in both of his previous marriages, will be a potential danger to any close personal relationship that he creates or becomes involved in, but that is not otherwise a danger to society. His emotional needs are such that, notwithstanding the age when he will be released, he has a strong need to form such associations. He has been helped in prison and indeed beforehand by the use of medication, but he does not always keep to the taking of medications. Dr Neilssen's opinion as referred to by Ms Flannery is, and I quote; The passage of unequal relationships and current delusional beliefs regarding his partners suggest that further psychiatric assessment and treatment should be a component of his rehabilitation".

44 I have no difficulty in finding that there are special circumstances within s44(2) of the Crimes (Sentencing Procedure) Act 1999, and that a lengthy period of supervision is appropriate. However, such period of supervision after a non-parole period should not be so lengthy as to reduce an inappropriately short period; the non-parole period which is clearly warranted by the objective seriousness of this offence.

45 I have, however, structured the sentence which I propose to impose, taking into account the plea of guilty, the circumstances of the offence and the need for supervision of the prisoner on his release to parole.

46 Geoffrey William Connolly, you are convicted of the offence of manslaughter. You are sentenced to a period of imprisonment for that offence of seven-and-a-half years, such sentence to commence on 14 August 2000 and to conclude on 13 February 2008. I fix a non-parole period of four-and-a-half years, to commence on 14 August 2000 and to conclude on 13 February 2005, from which time you will be eligible to be released on parole. Such parole should include conditions as to supervision of treatment for the psychiatric condition from which you suffer and for alcohol abuse. oOo

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