14 This view was shared by the two psychiatrists called in the defence case, Dr Bruce Westmore and Dr Olav Nielssen. They also considered that the offender was probably suffering from a form of schizophrenia. The possibility was also raised that the offender's capacity to judge whether his actions were right or wrong might have been substantially impaired so as to bring him within another limb of s23A, but in the light of the fact that all three psychiatrists agreed that there was a substantial impairment in his capacity to control himself, it was not necessary to explore this issue further.
15 Accordingly, the evidence at the trial was all one way as to the requirements of paragraph (1)(a) of s23A. It was common ground that the ability of the offender to control himself was substantially impaired within the meaning of that provision. The only real issue in contention was whether the impairment was "so substantial as to warrant liability for murder being reduced to manslaughter" as required by paragraph (1)(b).
16 This is quintessentially a jury issue involving the application of community standards. In reaching a verdict of murder the jury clearly answered this question in the negative.
17 It is likely, as both the Crown prosecutor and Mr Fitzgerald suggested, that in reaching its finding the jury was influenced by the extreme brutality of the killing, and by the fact that the attack on the deceased was recommenced after a gap in time when he had returned to his room and gone back to bed. Any imagined slight on the deceased's part was at that stage well in the past. Yet the offender, as he later told the police, felt that he "had to finish it."
18 There are a number of matters which I am obliged to take into account under s21 A of the Crimes (Sentencing Procedure) Act 1999. I shall deal very briefly with each of them before turning to the most significant issue in this case, namely the offender's disability. Subs (2) of s21A lists a number of aggravating factors to be taken into account if relevant on sentencing. The Crown prosecutor suggested that two factors were potentially relevant in this case: Paragraph (f), that the offence involved gratuitous cruelty; and paragraph (l), that the victim was vulnerable because he had a disability. However, the Crown himself fairly conceded that in the light of the offender's disability it would be difficult to categorize his actions as involving gratuitous cruelty, and I agree with this.
19 Similarly, in my view, paragraph (l) is intended to apply when an offender takes advantage of another person's vulnerability. In this case the offender suffered precisely the same vulnerability as the victim. There was, as Mr Fitzgerald submitted, an essentially level playing field. This being the case, I do not propose to take account of paragraph (l).
20 As to potentially mitigating features, the Crown prosecutor has very fairly pointed to s22A of the Act, which enables the courts to impose a lesser penalty than it would otherwise have done having regard to pretrial disclosures made by the defence for the purpose of the trial. In this case, the offender's plea of guilty to manslaughter would bring him within this provision.
21 Mr Fitzgerald pointed to a number of mitigating factors under subs (3) of s21A, which he submitted are relevant in this case. These include, under paragraph (3)(b), that the offence was not part of a planned or organised criminal activity; under 3 (e) and (f), that the offender has no record (or significant record) of previous convictions, and that he was a person of good character. I accept the relevance of each of these factors. The killing of Mr Swann was clearly an unpremeditated action. Tragically Mr Swann just happened to be in the vicinity when the offender was overtaken by a bout of uncontrollable anger. The offender had no prior convictions, and is thus taken to be a person of prior good character.
22 Mr Fitzgerald also sought to rely on paragraph (3)(j), that the offender was not fully aware of the consequences of his actions because of his disability. The Crown questioned the relevance of this factor in this case, pointing to the offender's answers in the police interviews which indicated both a full awareness and intention that his action would lead to the death of Mr Swann. I do not think it necessary to debate this issue here. I do not believe that the offender fully understood the consequences of his actions, but the offender's disability and the effects it had on his culpability and will have on his future is the major factor in the sentencing of this offender, so this matter will in any event be taken into account.
23 I turn now to discuss that issue. All three psychiatrists who gave evidence at the trial agreed that the killing of Mr Swann was the direct result of the offender's inability to control himself, which in turn was caused by his disability. Without his disability the offender would not have been at Lowther Lodge in the first place, and more importantly this tragic and meaningless killing would never have taken place.
24 The offender was taking antipsychotic and antidepressant drugs at the time of the killing. His drug regime had been altered earlier in 2003 and, according to at least one of the psychiatrists, this might have led to to an instability in his condition at the time of the offence. Since being taken into custody he has been in the Developmentally Delayed Unit at the Special Purpose Centre at Long Bay Prison. He has been receiving high doses of antipsychotic medication, and moderate doses of antidepressant medication. This appears to have stabilized his condition. All experts agree that the offender would be unable to function without support within the prison system, or live independently after his release. He will need a more structured and supervised environment, at least in the first place than was provided at Lowther Lodge.
25 Where does this leave us in the sentencing process? First it means that general deterrence should be afforded little or no weight in this case, as the offender, given his disability, is not an appropriate medium for making an example to others. Similarly, the offender's subjective culpability for his objectively brutal actions is significantly reduced. On the other hand, the circumstances of this offence, meaningless and brutal as it was, give rise to serious concerns as to his potential dangerousness in the future. Accordingly, individual deterrence and the protection of the public become major factors in the sentencing process. This was precisely the type of situation referred to and discussed by Gleeson CJ in R v Engert (1996) 84 ACR, page 67.
26 The killing of Mr Swann was, in the words of Dr O'dea, related to the offender's problems at the time in controlling his anger, aggression, and violent behaviour. These problems were in turn related to his psychiatric diagnosis of intellectual impairment and developmental delay, complicated by a history of problems with alcohol abuse and schizophrenia. Although these problems of anger, aggression, and violence appear to be under adequate control at present, particularly while he is receiving both psychiatric support and high levels of medication, the potential for repetition of some form of violent behaviour can by no means be dismissed. I agree, however, with Mr Fitzgerald that this is not the type of situation envisaged in the R v Veen (No.2). The offender here had no prior history of violent or aggressive behaviour. So long as he receives sufficient care and supervision, one would hope that his condition can be kept under control, thus avoiding a repetition of any serious violence in the future.
27 Clearly, the unusual circumstances of this case, particularly relating to the offender's disability and his need for a structured and supervised environment, constitute special circumstances under s44 of the Crimes (Sentencing Procedure) Act. This offence having been committed in June 2003, the standard non-parole period of 20 years would apply if this offence were in the middle range of objective seriousness for murder. Accordingly, if all else were equal, one would be looking at a non-parole parole period of that order and a total sentence of about 26 to 27 years for this offence.
28 All else is not, however, equal. To summarise what I have already said, the offender's subjective culpability for this offence is significantly reduced by reason of his disability. On the other hand the inexplicable nature of this killing, and the ferocity of the offender's actions, give rise to real concern as to his future management.
29 In my view of head sentence of 24 years would be appropriate in this case. In the light of the offender's need for close supervision over a lengthy period before he is finally released from all obligations under his sentence, I intend to impose a significantly lower non-parole period than would otherwise be applicable, with a correspondingly longer period of supervision in the community.
30 I should finally say that I have received and read the very sad victim impact statement of the deceased's mother. In accordance with s28 of the Act, however, I have not taken it into account in the determination of sentence in this matter.
31 David Hugh Laurie, for the offence of murdering Jeffrey Swann I sentence you to a non-parole period of 15 years to commence on 7 June 2003 and, therefore, to expire on 6 June 2018. The balance of your term of imprisonment is 9 years, to commence on 7 June 2018 and thus to expire on 6 June 2027.
**********