Camilleri v R

[2023] NSWCCA 106

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Camilleri v R [2023] NSWCCA 106

Hearing dates:

30 September 2022

Date of orders:

17 May 2023

Decision date:

17 May 2023

Before:

Adamson JA at [1];
Hamill J at [61];
Cavanagh J at [186]

Decision:

(1) Grant leave to appeal.

(2) Allow the appeal on ground 1.

(3) Quash the sentence imposed on 12 March 2021 and in lieu thereof the applicant is sentenced to a non-parole period of 12 years commencing on 20 July 2019 and expiring on 19 July 2031, with a balance of term of 4 years and 6 months expiring on 19 January 2036.

(4) The applicant will be eligible for release to parole at the expiration of the non-parole period.

(5) The applicant is advised that the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) apply to her case and the Court directs the applicant’s legal representative to explain the implications of that statute to the applicant.

Catchwords:

CRIMINAL LAW – sentencing – manslaughter – horrendous killing of mother – decapitation – substantially impaired offender – complex neurological and mental impairments – relationship between moral culpability and objective seriousness – spontaneous offence – loss of self-control – protection of the community – purposes of punishment – whether error in assessment of objective gravity

CRIMINAL LAW – sentencing – facilitation of the course of justice – distinction from statutory discount for utilitarian value of guilty plea – where statutory system prescriptive and unfair – facilitation discount not to fill gaps – whether error in approach taken by sentencing judge

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(n), 21A(3)(b), 23A, Pt 3 Div 1A, 25D(1), 25D(5), 25D(5)(a), 25E, 25E(2), 25E(3)(b), 22A, 22A(1), 22A(2), 25F, s 25F(2), 54A(2)

Crimes Act 1900 (NSW), ss 23A, 24, 421(1)

Criminal Appeal Act 1912 (NSW), s 6(3)

Homicide Act 1957 (UK), s 2

Mental Health (Forensic Provisions) Act 1990 (NSW), s 32

Cases Cited:

Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6

Catley v R [2014] NSWCCA 249

Chandler v R (2023) 103 MVR 392; [2023] NSWCCA 59

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Droudis v R (2020) 103 NSWLR 806; [2020] NSWCCA 322

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156

Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33

Magro v R [2020] NSWCCA 25

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Mulato v R [2006] NSWCCA 282

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17

Paterson v R [2021] NSWCCA 273

Pitt v R [2014] NSWCCA 70

R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep)

R v Cooper (Court of Criminal Appeal (NSW), 24 February 1998, unrep)

R v Cahill (No. 4) [2018] NSWSC 1896

R v Camilleri [2021] NSWSC 221

R v Dally (2000) 115 A Crim R 582; [2000] NSWCCA 162

R v DF [2022] NSWSC 762

R v Hill [2019] NSWSC 733

R v Hong [2021] NSWSC 1487

R v Isaacs (1997) 41 NSWLR 374

R v Keceski (Court of Criminal Appeal (NSW), 10 August 1993, unrep)

R v Kilic (2016) 259 CLR 256; [2016] HCA 48

R v Krey (No 4) [2021] NSWSC 826

R v MB [2017] NSWSC 619

R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242

R v Nguyen (2013) 234 A Crim R 324; [2013] NSWCCA 195

R v Reid (No. 2) [2021] NSWSC 475

R v Scott (No 3) [2021] NSWSC 1646

R v Srsa [2021] NSWSC 924

R v Stephen Anthony Cavanagh [2010] NSWSC 670

R v Tarrant [2018] NSWSC 774

R v Warren Scott(No 3) [2021] NSWSC 1646

R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343

Sodeman v The King (1936) 55 CLR 192; [1936] HCA 75

Tabbah v R [2019] NSWCCA 324

Tepania v R (2018) 275 A Crim R; [2018] NSWCCA 247

The King v Porter (1933) 55 CLR 182; [1933] HCA 1

Ukropina v R [2016] NSWCCA 277

Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category:

Principal judgment

Parties:

Jessica Camilleri (Applicant)
Rex (Respondent)

Representation:

Counsel:
T Game SC with R Khalilizadeh (Applicant)
E Balodis (Respondent)

Solicitors:
Legal Aid Commission (NSW) (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2019/225633

Publication restriction:

There can be no publication of any information that could identify Child A.

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2021] NSWSC 221

Date of Decision:

12 March 2021

Before:

Wilson J

File Number(s):

2019/225633

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant killed her mother in circumstances in which the sentencing judge described the crime as one of extraordinary viciousness and brutality. The applicant was charged with murder but convicted of manslaughter on the basis of substantial impairment under s 23A of the Crimes Act 1900 (NSW). The applicant was sentenced to a term of imprisonment for a period of 21 years and 7 months with a non-parole period of 16 years and 2 months, which included a discount of 10% in respect of the offer of plea of guilty to manslaughter.

The applicant sought leave to appeal against sentence on three grounds:

1. The sentencing Judge erred in her Honour’s assessment of the “gravity of the crime”.

2. The sentencing Judge erred in failing to discount the applicant’s sentence for her acceptance of responsibility and willingness to facilitate the administration of justice.

4. The sentence was manifestly excessive.

HELD: The Court (per Hamill and Cavanagh JJ) granted leave to appeal, allowed the appeal and resentenced the applicant to imprisonment of 16 years and 6 months with a non-parole period of 12 years. Each of the judges wrote separately.

Adamson JA (in dissent) would have granted leave to appeal and dismissed the appeal on all grounds.

Hamill J would have upheld grounds 1 and 2.

Cavanagh J would have upheld only ground 1.

In respect of ground 1:

Hamill J, upholding ground 1:

1. An assessment of the seriousness of the offending and the moral culpability of the offender are separate but related steps: [135]. A mental impairment may affect an assessment of the objective seriousness of an offence where the mental impairment is effectively a constituent element of the crime, such as manslaughter involving substantial impairment: [135].

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [77], [96], considered.

2. When dealing with an offence of manslaughter based on a finding of substantial impairment, an offender’s cognitive impairment or mental illness is relevant to sentencing in terms of its impact on the objective criminality and on the purposes of punishments and sentencing factors: [142].

R v Keceski (Court of Criminal Appeal (NSW), 10 August 1993, unrep), Mahoney JA at 10, applied; DS v R; DM v R, applied.

3. Where an offender has a mental abnormality that makes them a danger to society but reduces their moral culpability, consideration of dangerousness cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality: [144].

Veen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 472, 476-477, applied; Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 at 354, considered.

4. The sentencing Judge erred in her Honour’s assessment of objective gravity in two ways: her Honour failed to consider the extent to which the applicant’s complex psychiatric and cognitive impairments impacted on objective seriousness and moral culpability; and her Honour diminished the significance of the spontaneity of the attack because it was sustained, even though expert evidence established that the applicant lost control throughout the entire period: [146].

Cavanagh J, upholding ground 1:

5. The assessment of moral culpability is not part of the process of assessing objective seriousness but the existence of a mental health impairment may impact upon both: [189]-[192].

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [77], [96], considered.

6. The sentencing judge’s assessment of the reduction in moral culpability arising out of the mental illness was within the discretion of the sentencing judge: [199].

7. The impact of the mental and cognitive impairment on the nature of the offending, such as whether it was planned and its duration, was also a relevant sentencing factor: [214]. A consideration of that impact is not precluded on the basis of double counting: [215].

R v Keceski (Court of Criminal Appeal (NSW), 10 August 1993, unrep), Mahoney JA at 10, applied; Tepania v R (2018) 275 A Crim R; [2018] NSWCCA 247 at [112], considered.

Adamson JA (dissenting on this ground), rejecting ground 1:

8. An offender’s mental impairment has a particular character in sentencing for s 23A manslaughter because substantial impairment is effectively a constituent element of the crime. It is necessary to avoid double counting the mental condition in favour of the offender: [14].

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156; R v Reid (No 2) [2021] NSWSC 475, applied.

9. Gravity of the crime is an objective matter, which necessarily excludes consideration of subjective matters such as moral culpability: [22], [24].

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, discussed.

10. Mental impairment may, in some limited instances, be relevant to objective seriousness for the purposes of sentencing: [25]-[26]. It was open to the sentencing judge not to reduce objective seriousness by reference to mental impairment because to do otherwise in the circumstances of the case would have been to “double count” the effect of the mental impairment, which itself had reduced the applicant’s criminal liability to manslaughter rather than murder: [28], [39]. It was open to her Honour to find that the gravity of the offence put it in the worst category of cases: [40].

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14, applied.

In respect of ground 2:

Adamson JA, rejecting ground 2:

11. It was not an error for the sentencing judge to refrain from making an additional reduction in sentence (by reference to ss 25A(2), 25E and 25F of the Crimes (Sentencing Procedure) Act 1999. Her Honour’s reasons sufficiently explain why allowing the full 10% discount for the utilitarian value of the plea did not leave room, in the particular circumstances of the case, for an additional reduction to acknowledge the facilitation of the administration of justice: [48].

Cavanagh J, rejecting ground 2:

12. Section 25F relates only to sentencing discounts applied under Part 3 Division 1A. It does not apply to any discount assessed under s 22A of the Act: [229].

13. The sentencing judge did not apply s 25F(2) in the exercise of her discretion in not allowing any further discount for the facilitation of the administration of justice. No error is demonstrated in her Honour’s approach: [229]-[230].

Hamill J (dissenting on this ground), upholding ground 2:

14. There is a distinction between Pt 3 Div 1A of the Crimes (Sentencing Procedure Act) that provides for a discount for the utilitarian value of a guilty plea, and the Court’s wide power in s 22A of the Crimes (Sentencing Procedure Act) to reduce penalties for facilitating the administration of justice: [161]. Section 25F of the Crimes (Sentencing Procedure) Act only relates to sentencing discounts applied under Pt 3 Div 1A: [162]. The sentencing Judge erred in allowing the power in s 22A to be constrained by s 25F: [162].

Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6, considered.

In respect of ground 4:

Adamson JA, rejecting ground 4:

15. Whether a sentence is manifestly excessive is a conclusion and does not depend on the demonstration of patent error. To make out this ground, the applicant must establish that the sentence is “unreasonable or plainly unjust”: [50].

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, applied.

16. The crime was so serious that it was open to the sentencing judge, consistently with the principle of proportionality, to find that it was in the worst category of cases, arrive at a starting point of 24 years’ imprisonment (before the application of the 10% discount for the plea) and impose the sentence which was in fact imposed. The reasons of the sentencing judge show that her Honour took into account all relevant circumstances: [57], [58].

JUDGMENT

1. ADAMSON JA: I have had the benefit of reading the reasons of Hamill J in draft and gratefully adopt his Honour’s summary of the reasons of the sentencing judge and the parties’ submissions. I consider that the appeal ought be dismissed for the following reasons.

Ground 1: alleged error in the assessment of the “gravity” of the crime

2. Ground 1 arises in circumstances where the basis for the jury’s verdict was that, at the time the applicant killed her mother, she was substantially impaired by an abnormality of the mind which led to her having a diminished capacity to control herself. Her impairment was so substantial as to warrant her liability for murder being reduced to manslaughter pursuant to s 23A of the Crimes Act1900 (NSW) (s 23A manslaughter). While the maximum penalty for murder is life imprisonment, the maximum penalty for manslaughter is 25 years’ imprisonment.

3. In support of ground 1, Mr Game submitted that the starting point of the sentence (before the deduction of 10% for the plea of guilty to manslaughter) of 24 years’ (21 years plus 10%) imprisonment, was far too close to the maximum penalty of 25 years’ imprisonment to be warranted in the present case and revealed error in the assessment of the gravity of the offending. He contended that the sentencing judge was wrong to characterise the offence as being “as serious an example of manslaughter as it is possible for such a crime to be” ([31] of the sentencing judgment).

4. Mr Game submitted that her Honour had failed to give effect to the following paragraph in the reasons, which ought be understood as a finding that the applicant offended due to a complete loss of control:

“Professor Greenberg found that the offender experienced rage attacks which are explosive in nature and her ‘capacity to control herself was substantially impaired by her abnormality of mind arising from her underlying conditions’ when she killed Mrs Camilleri. He regarded it as likely that, on the evening of 20 July 2019 a ‘triggered event’ that involved a coalescence of stressors occurred. It was Professor Greenberg’s opinion that the offender’s loss of control was complete, and endured for the whole of the attack upon her mother.”

5. He submitted that this finding required the sentencing judge to regard the gravity of the offence as having been lessened, first, on account of the applicant’s reduced moral culpability which derived from her substantial loss of control which was “operative and causal”; and, second, by reason of the applicant’s mental impairment. He also relied on R v Kecevski (unreported, NSWCCA 10 August 1993), in which the appellant was sentenced for s 23A manslaughter.

6. Mr Game resisted the demarcation in cases such as Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock) between objective and subjective matters and submitted that the concept of objective seriousness was “a term of art” when used in the context of offences for which a standard non-parole period is prescribed (under s 54A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act)). He submitted, accordingly, that cases such as Muldrock (which deal with offences for which there is a standard non-parole period) do not assist in determining the matters which are germane to objective seriousness for the purposes of proportionality. He contended that the statutory exclusion in s 54A(2) of the Act, which requires that “only the objective factors affecting the relative seriousness of [the] offence” are to be taken into account, has no analogue in the common law assessment of the gravity of the offence for the purposes of proportionality.

7. Mr Game submitted that the error (in failing to take into account reduced moral culpability in assessing gravity) was evident from the following passages in the sentencing judgment:

“37   The damage done by a crime such as this, inflicted by one family member upon another, with such destructive and mutilating brutality, is very great indeed. Mrs Camilleri’s life was cut short in the most horrible manner imaginable. The lives of others have been forever changed, as the Court heard when victim impact statements were given by those whose sufferings have been greatest.

38   Since the offender fully understood the nature and wrongness of her actions, her moral culpability remains relatively high. Her disabilities and the direct role that those disabilities played in the offending is what prevents the offender’s moral culpability from being assessed as at the very highest level.

39   I accept that the crime was entirely spontaneous but in the context of a sustained attack, that feature is of diminishing relevance. Although manslaughter can be constituted in many circumstances, this is amongst the gravest examples of it.”

8. Mr Game was also critical of the following passages which he contended in oral submissions amounted to a statement that, in effect, the applicant was fortunate to have been convicted of manslaughter rather than murder and that the judge was going to hold it against her:

“57   Whether called intermittent explosive disorder (“IED”) or seen as a symptom of autism or OCD, I accept as the jury clearly did, that the offender is substantially impaired as a consequence of her multiple disorders, and she experiences episodes of violent rage which she is unable to control. It was her inability to control herself that led her to attack her mother, and which grounded the verdict for manslaughter; there is no question that the offender understood the nature of her acts when she was stabbing her mother, and also understood that it was very wrong, and criminal. That is clearly demonstrated by her attempts to falsely claim afterwards that she had acted in self-defence.

…

82   As to the extent of the offender’s impairment and its relationship to the partial defence, it must be borne in mind that the offender has already had her liability for what would otherwise have been a conviction for murder, carrying a maximum sentence of life imprisonment and attracting a standard non-parole period of 20 years, greatly reduced to that of liability for manslaughter, carrying a maximum sentence of 25 years imprisonment and not attracting any standard non-parole period, solely because of her substantial impairment.

83   In my opinion, only a very substantial level of impairment could have been accepted as lessening the offender’s liability for a crime of such extreme and extended savagery as this was. I am not persuaded that anything in R v Keceski requires any amelioration of sentence beyond that which flows from the proper application of the De La Rosa principles.

84   Those principles are enumerated as follows, omitting the citations given in the original:

‘Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing:

1. Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.

2. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.

3. It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced.

4. It may reduce or eliminate the significance of specific deterrence. 

5. Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence.’

85   It is clear that this is an offence to which the offender’s impairments materially contributed, and there can, as a consequence, be some amelioration of moral culpability. However, as I earlier noted, the reduction in the offender’s moral culpability cannot be complete since she well understood the nature of her act, and also well understood how very wrong it was.”

9. Mr Game relied on The King v Porter (1933) 55 CLR 182; [1933] HCA 1 (Porter), a record of Dixon J’s summing up in a trial by jury conducted in the original jurisdiction of the High Court, and Sodeman v The King (1936) 55 CLR 192 at 214-215 (Dixon J); [1936] HCA 75.

Consideration

10. The starting point for a consideration of ground 1 is the principle expressed in Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ):

“Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour.”

11. Simpson J in Mulato v R explained the reason for the caution required to be exercised by this Court before intervening to “correct” the sentencing judge’s assessment of objective seriousness in the following passage at [46]:

“The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King[1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance.”

12. As referred to above, Mr Game challenged the sentencing judge’s assessment of gravity on two bases: first, that her Honour failed to take into account the applicant’s substantial impairment in so far as it diminished moral culpability; and, secondly, that it was not open to her Honour not to reduce the gravity of the offence by reference to the applicant’s substantial impairment. This challenge has not been made out for two main reasons.

13. First, moral culpability is a subjective matter which does not bear on objective seriousness. Secondly, although substantial impairment was potentially relevant to an assessment of the gravity of the offending, it was open to the sentencing judge not to reduce her assessment of the gravity of the offending on account of the substantial impairment because the applicant’s substantial impairment had been sufficiently accounted for in the reduction of her criminal liability from murder to s 23A manslaughter.

14. An offender’s mental impairment has a particular character in sentencing for s 23A manslaughter because substantial impairment is “effectively a constituent element of the crime”: DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [96] (Beech-Jones CJ at CL, N Adams and Cavanagh JJ). When sentencing an offender for s 23A manslaughter, it is necessary to avoid “double counting” the mental condition in favour of the offender (by reducing the offender’s liability to s 23A manslaughter and by reducing the gravity of the offence on the basis of the same mental condition). In R v Reid (No 2) [2021] NSWSC 475 Johnson J said at [129]:

“It remains necessary for the Court to take into account the Offender’s mental condition on sentence, in circumstances where that condition was linked directly to the commission of the offences. However, the Court must be careful not to double count, in the Offender’s favour, his mental condition in a way which does not properly reflect the fact that the mental condition was also critical to the reduction of his offences from murder to manslaughter: R v Tarrant [2018] NSWSC 774 at [163]-[171]; R v Cahill (No. 4) [2018] NSWSC 1896 at [203].”

15. The High Court in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (Veen (No 2)) addressed the very issue which arose in the present case: that is, the principles to be applied to sentencing an offender for a terrible crime in circumstances where the offender’s mental abnormality led to the offender being convicted for s 23A manslaughter, rather than murder.

16. In Veen (No 2) the plurality (Mason CJ, Brennan, Dawson and Toohey JJ), at 476, described as an “anomaly”, the way in which a “mental abnormality” (which increases future dangerousness) is regarded when it results in a conviction for s 23A manslaughter rather than murder, as in the present case.

17. Their Honours referred to s 2 of the Homicide Act 1957 (UK), which was the model for s 23A of the Crimes Act and provided for murder to be reduced to manslaughter on the grounds of mental abnormality, which in turn had the effect of reducing the maximum sentence from death (for murder) to life imprisonment (for manslaughter). Their Honours said, at 476:

“Prima facie, a mental abnormality which exonerates an offender from liability to conviction for a more serious offence is regarded as a mitigating circumstance affecting the appropriate level of punishment. Historically, that was the effect of the provision on which s 23A [of the Crimes Act] was modelled, that is, s. 2 of the Homicide Act 1957 (UK). That section affected the operation of the existing law in two respects: first, by providing a defence to the crime of capital murder, it protected a qualified offender from the death penalty and, secondly, it provided a modified defence to many mentally abnormal offenders (especially the “uncontrollable impulse” offenders) who were not entitled to the more restricted defence of insanity according to the M’Naghten Rules: see Windlesham, Responses to Crime (1987), pp. 122-124. But that provision has never been regarded as requiring in all instances the imposition of a penalty less than life imprisonment, as Baroness Wootton of Abinger pointed out in “Diminished Responsibility: A Layman's View”, Law Quarterly Review, vol. 76 (1960) 224, p. 237:

‘In practice it seems likely that the courts do have in mind in passing sentences the probable risk involved in relatively short periods of imprisonment for irresponsible people; and that the heavier sentences are imposed upon those who are thought to be the more dangerous criminals.’

She acknowledged that there is a lack of logic in imposing heavier sentences on the more dangerous criminals whose mental abnormality reduced their moral responsibility for the unlawful homicide, and she concluded that ‘[t]he concept of diminished responsibility represents, in fact, an attempt to smuggle into an essentially punitive system ideas and aims which are totally incompatible with such a system’. However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment.”

[Emphasis added.]

18. The High Court expressly accepted not only the “lack of logic” to which Baroness Wootton of Abinger referred in the passage which the plurality extracted in its reasons, but also that the concept of diminished responsibility (on which s 23A manslaughter rests) constitutes “an attempt to smuggle into an essentially punitive system ideas and aims which are totally incompatible with such a system.” The High Court considered that this “lack of logic” was necessary in cases of diminished responsibility, having regard to the purposes of punishment.

19. Their Honours continued at 476-477:

“The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality.”

20. The reference in this passage to other matters (that is, in addition to the gravity of the offending) which are germane to sentencing, such as mental abnormality which diminishes moral culpability, does not convert such “other matters” into matters which are germane to gravity and objective seriousness. Rather, it confirms that there are several factors, both subjective and objective, which are relevant to the process of instinctive synthesis by which the sentence imposed is arrived at.

21. The assessment of gravity is an important aspect of sentencing, including because of its significance to proportionality. Proportionality requires that the sentence imposed be neither greater (Veen (No 2)) nor lesser (R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 at [156]-[158]) than the objective seriousness of the crime requires: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15] (Spigelman CJ). This principle applies generally to offences for which there is no standard non-parole period as well as those for which one has been prescribed: DS v R; DM v R at [68] (Beech-Jones CJ at CL, N Adams and Cavanagh JJ).

22. Because the gravity of the crime is an objective matter, it necessarily excludes consideration of subjective matters such as moral culpability. The distinction, which was resisted by Mr Game, is illustrated by Muldrock where the High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell J) said at [27]:

“… The objective seriousness of an offence is to be assessed without reference to matters personal to the particular offender or class of offenders.”

23. Thus, in the context of the offence in Muldrock (for which a standard non-parole period of 15 years’ imprisonment was prescribed) their Honours said, of present significance:

“An offence of sexual intercourse with a child aged under 10 years falling within the middle of the range of objective seriousness has a standard non-parole period of 15 years. That circumstance says little about the appropriate sentence for this mentally retarded offender and this offence.”

[Emphasis added.]

24. Accordingly, while moral culpability is relevant to sentencing (as are other subjective factors such as future dangerousness in so far as it bears on the likelihood of re-offending and the prospects of rehabilitation, which are relevant to the purpose of protection of the public), it is not germane to the assessment of objective seriousness. For these reasons, Mr Game’s criticism of the sentencing judge’s assessment of the gravity of the crime on the basis that her Honour did not take into account diminished moral culpability must be rejected.

25. Mental impairment is generally relevant to moral culpability. Moral culpability is subjective and therefore is not relevant to objective seriousness. However, mental impairment may, in some limited instances, be relevant to objective seriousness. This point was made in DS v R; DM v R where the Court said, at [96]:

“It follows that an offender’s mental impairment is a matter that can affect both an assessment of moral culpability and objective seriousness. However, while a mental impairment ‘may’ affect an assessment of the objective seriousness of an offence it will not necessarily do so, even if it is said that there is ‘a’ causal connection between the impairment and the offence. The critical factors are the nature of the impairment, the nature and circumstances of the offence, and the degree of connection between the former and the latter. The most obvious such circumstance is where the mental impairment is effectively a constituent element of the crime, such as manslaughter involving a substantial impairment within the meaning of s 23A of the Crimes Act. Another example may be where an offender damaged property during a period of psychosis or while suffering delusions but in circumstance that fall short of that which might establish a mental illness defence. In such a case, it could be said that the objective seriousness of the offending was reduced perhaps substantially.”

[Emphasis added.]

26. Thus, mental impairment is at least potentially relevant to an assessment of objective seriousness for s 23A manslaughter for the purposes of sentencing. But whether it operates to reduce objective seriousness, depends on the particular case. There are some cases, such as Veen (No 2), where the objective seriousness was adjudged to be very high, notwithstanding the offender’s significant mental impairment.

27. It is plain from [83] and [84] of the sentencing judge’s reasons that her Honour expressly considered whether the applicant’s mental impairment reduced the objective seriousness of the offence and decided that:

1. “only a very substantial level of impairment could have been accepted as lessening the offender’s liability for a crime of such extreme and extended savagery as this was”: [83];

2. R v Kecevski did not require any amelioration of the sentence on the basis of substantial impairment beyond that which flowed from the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (which relate to moral culpability, whether the applicant is an appropriate vehicle for general deterrence, whether the sentence will weigh more heavily, whether specific deterrence is significant and future dangerousness).

28. As to (1) above, in my view, it was open to the sentencing judge to take this approach (which accords with that taken in Veen (No 2)) in the circumstances of the present case. Her Honour was entitled not to reduce objective seriousness by reference to mental impairment because to do otherwise would have been to “double count” the effect of the mental impairment, which itself had reduced the applicant’s criminal liability to manslaughter rather than murder.

29. It was, in this context, also open to her Honour to “accept that the crime was entirely spontaneous but [find that] in the context of a sustained attack, that feature is of diminishing relevance.” The spontaneity of the attack was not an independent factor which reduced objective seriousness but rather a feature of the loss of control (“the violent rage which [the applicant] is unable to control”: [57]) which was the basis for the finding of mental impairment and had reduced the applicant’s liability from murder to manslaughter. Further, because the attack was “sustained”, the fact that its commencement had been “spontaneous” diminished in significance as the attack continued.

30. This analysis also explains why Mr Game’s criticism of the sentencing judge’s reasons in [57] and [82] is unwarranted. What the sentencing judge said in those paragraphs was correct and accords with the approach taken by Johnson J in R v Reid (No 2).

31. As to (2) above, Mr Game submitted that the sentencing judge had failed to take account of what this Court had found in R v Kecevski. Mr Game relied on the following passage from Mahoney JA’s reasons (which were delivered ex tempore at the conclusion of the hearing of the appeal):

“One of the difficulties that I have felt in this case is to determine what was the relationship between the mental illness, from which undoubtedly the applicant was suffering, and what he did in killing the lady in question. The section, s 23A of the Crimes Act, provides for a verdict of manslaughter on the ground of diminished responsibility where the abnormality of mind has ‘substantially impaired his mental responsibility for the act or omissions’ in question. The jury [sic, it was a trial by judge alone] found that a case of diminished responsibility was established and, therefore, it is to be accepted that his mental responsibility was ‘substantially impaired’. That leaves the determination of one of the matters relevant to sentencing, namely, the extent to which what he did was really affected by his mental condition, granted always that one must start from the basis that his mental responsibility was ‘substantially impaired’. This of course is not a new question, it has been referred to in the courts before. But it was one of the matters with which, in my opinion, his Honour had to deal in this case. His Honour, for the reasons that he indicated, was (I think) less than fully convinced that the mental condition, the depression in question, was the sole cause of what happened. I am satisfied that he came to another conclusion. Having heard the evidence analysed by counsel in this case, I would come to a similar conclusion. It is sufficient to say that I do not think that the Judge was guilty of error such as would warrant this Court intervening.

One cannot but sympathise with the applicant by reason of the condition from which he suffered at the time and the misfortunes that precipitated the symptoms of that condition. But in the end it was for the Judge, and is ultimately for this Court on appeal, to assign responsibility or punishment in the relevant sense for what occurred. In all the circumstances, I am not satisfied that the Judge was wrong and I do not think that this Court should intervene.”

32. I understand Mahoney JA in Kecevski to have been saying no more than this Court said in DS v R; DM v R in the passage extracted above: namely, that the offender’s mental condition may affect operate to reduce the gravity of a s 23A manslaughter but that it will not necessarily have that effect given that the starting point is that the offender’s mental capacity was substantially impaired. Thus, her Honour was, in my view, correct to find, at [83], that Keceski did not require a reduction in the assessment of the gravity of the offence on account of mental impairment.

33. Porter and Sodeman (on which Mr Game placed significant reliance) related to findings of guilt at trial rather than to sentencing principles and do not assist the applicant. In Porter, Dixon J presided over a jury trial in which Mr Porter was charged with murder. Porter comprises extracts from the summing up, together with the statement the accused was found not guilty of insanity at the time of the commission of the act charged (killing his infant son, who was aged 11 months). In Sodeman, the accused appealed against his conviction for murder. He admitted the killing of the deceased but raised the defence of insanity. The question was whether the jury would have understood from the summing up that the accused was required to prove insanity beyond reasonable doubt rather than, as is the case, on the balance of probabilities. Neither Porter nor Sodeman, which concerned criminal liability, provides assistance as to the correct sentencing approach in cases, such as the present. Further, both of these decisions pre-date Veen (No 2).

32. The rationale for the sentencing judge’s approach can be explained by analogy with Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 in which the appellant was sentenced to manslaughter on the basis of excessive self-defence. The plea was accepted on the basis that the appellant had shot three police officers, believing that they were criminals merely posing as police officers, who were intent on killing him or causing him grievous bodily harm. On these facts, the Crown accepted that it could not exclude the partial defence of excessive self-defence under s 421(1) of the Crimes Act.

33. In R v Nguyen (2013) 234 A Crim R 324; [2013] NSWCCA 195, at [57], the sentencing judge said, when assessing the gravity of the offence:

“I accept that the offender was unaware that Constable Crews was a police officer when he shot him and that, although he did not fire the shot that killed Constable Crews, he caused his death. I also accept that when he discharged the pistol that caused his death and the wounding he had a genuine belief (entirely misplaced) that he needed to defend himself against a perceived threat of harm. Notwithstanding those findings, the circumstance in which the offences were committed, including the aggravating factors to which I have referred, render both offences objectively serious. I am not persuaded, however, that either offence is in the worst category. It would have been otherwise were the offender to have shot at Constable Crews intending to inflict grievous bodily harm knowing or believing he was a police officer, or were he with that same state of awareness to have pleaded guilty to manslaughter on the basis that Constable Crews was killed by his unlawful and dangerous act in shooting at him.”

[Emphasis added.]

36. This Court (Beazley P, Johnson and R A Hulme JJ) allowed a Crown appeal against the sentence, finding that the sentence imposed by the sentencing judge was manifestly inadequate: R v Nguyen (2013) 234 A Crim R 324; [2013] NSWCCA 195. It held that the sentencing judge had erred in her assessment of the objective gravity of the offence by contrasting it with the supposed gravity of the offence on the basis (contrary to the fact) that the appellant had known that the deceased was a police officer. It found, at [95]:

“This was a most serious example of the crime of manslaughter. For reasons explained in the context of the first ground of appeal, the fact that the Respondent [the offender] did not know or believe that the persons in the garage were police officers is not relevant to an assessment of the objective gravity of the manslaughter offence.”

37. On appeal to the High Court, the appellant argued that this Court had wrongly excluded any consideration of the appellant’s mental state from its assessment of the gravity of the offence. He submitted that the Court ought to have taken into account, in assessing objective seriousness, that he acted in the heat of the moment, believing that he needed to defend himself. The High Court unanimously dismissed the appeal. Justices Bell and Keane held, at [43], that this Court was correct to say that the appellant’s perception that the deceased was a robber was not material to the assessment of the gravity of the manslaughter. Justices Gageler, Nettle and Gordon said:

“[57]    … The problem with [the sentencing judge’s] approach was, as the Court of Criminal Appeal recognised, that if the appellant had known that the deceased was a police officer, and had shot him with intent to cause grievous bodily harm, there would have been no basis for the appellant’s invocation of the partial defence of excessive self-defence. The appellant would have been guilty of murder.

[58]    It is irrelevant in assessing the objective gravity of an offence of manslaughter to contrast it with what would be an offence of murder. It is erroneous because it is likely to result in an assessment of the relative gravity of the subject offence which ill-accords with its objective gravity relative to other instances of offences of that kind.

[59]    Consequently, the judge’s comparison of the gravity of the subject offence of manslaughter with what she supposed would have been the gravity of the offence if the appellant had known that the deceased was a police officer was an erroneous comparison that was likely to result, and appears in fact to have resulted, in the judge concluding that the objective gravity of the subject offence of manslaughter ranked lower in the range of gravity of offences of manslaughter than in fact it did.”

38. For analogous reasons, it was open to her Honour to decide not to reduce objective seriousness by reference to the applicant’s mental impairment. The sentencing judge’s evident concern was to avoid assessing the gravity of the applicant’s offending so as to suggest that (to borrow the plurality’s words from the extract from [59] of Nguyen v R above) it “ranked lower in the range of gravity of offences of manslaughter than in fact it did”.

39. In summary, an offender’s mental state may reduce objective seriousness for the purposes of sentencing for s 23A manslaughter but the extent to which substantial impairment will have that effect is a matter of fact and degree. In the circumstances of the present case, it was open to the sentencing judge to find that the applicant’s substantial impairment did not further reduce the gravity of the offending beyond its effect on the jury’s verdict (not guilty of murder but guilty of s 23A manslaughter).

40. For the reasons given above, no error has been shown in the sentencing judge’s assessment of the gravity of the applicant’s offending which was a matter which was “classically within [her] role” (Mulato v R, at [37]). It was open to her Honour to find that its gravity put it in the worst category of cases. I am not persuaded that ground 1 has been made out.

Ground 2: alleged error in failing to discount the applicant’s sentence for her acceptance of responsibility and willingness to facilitate the administration of justice

41. The applicant accepted that Part 3 of Division 1A of the Act (which prescribes sentencing discounts for guilty pleas to indictable offences) did not allow for a utilitarian discount of more than 10% in the present case because s 25E(3)(b) tied the level of discount to the timing of the applicant’s offer to plead guilty to manslaughter. However, Mr Game contended that the applicant was entitled to have her sentence reduced under s 22A of the Act because, first, she did not apply to have the matter remitted to the Local Court for committal once her fitness for trial was no longer an issue (which he submitted would have entitled her, subject to s 25F(2), to a greater discount for a plea); and, second, she co-operated in the adducing of evidence at trial in a way which shortened the length of the trial. He submitted that her Honour was in error in not making an allowance for this matter.

42. Section 25E of the Act is qualified by s 25F(2), which relevantly provides:

“Exception to application of discount—level of culpability The court may determine not to apply the sentencing discount, or to apply a reduced sentencing discount, if the court determines, on its own motion or on the application of the prosecution, that the discount should not be applied or should be reduced because the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can be met only by imposition of a penalty with no allowance for, or a reduction of, that discount.”

43. Section 22A of the Act provides:

“22A   Power to reduce penalties for facilitating the administration of justice

(1)     A court may 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 or during the trial or otherwise).

(2)     A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.”

44. The sentencing judge decided not to allow a further discount for facilitating the administration of justice (beyond the 10% provided for by s 25E(3)(b) of the Act for the plea) on the ground that a greater discount would offend against the factor referred to in s 25F(2) and, as I read her Honour’s reasons, s 22A(2), which incorporates the common law principle of proportionality as a control on reductions for facilitation of the administration of justice.

45. Although Mr Game was critical of the sentencing judge taking into account s 25F of the Act when it had not been raised by the parties, it was an important qualification to s 25E, to which her Honour was required to have regard when deciding whether to allow the full discount provided for under s 25E. Her Honour’s reasons referred to the matters contained within s 25F as being relevant to whether a lesser discount ought be allowed.

46. It was open to the sentencing judge to express her conclusion in this way. It would also have been open to her Honour to reduce the discount provided for by s 25E(3)(b) to, say, 5%, but take into account, in the applicant’s favour, her facilitation of the administration of justice under s 22A. As a reduction of penalty under s 22A is not usually quantified, the applicant would not have been in a position to know, if this option had been chosen, the extent to which her facilitation had made a difference to her sentence. Her Honour’s approach had the benefit of greater transparency.

47. In substance, Mr Game submitted that it was unfair for the applicant not to have obtained a discount for facilitating the administration of justice for her conduct in not insisting that the matter be returned to the Local Court which would (but for the qualification in s 25F(2)) have resulted in a prima facie entitlement to a 25% discount rather than a 10% discount. However, this matter was fully ventilated before the sentencing judge, who decided that, if a discount of 10% was applied, no further reduction to the sentence on the ground of facilitation of the administration of justice was warranted. Thus, it cannot be inferred that, had the application taken the course of returning to the Local Court, a discount of 25% would have been allowed because her “entitlement” to the discount was qualified by s 25F(2) of the Act.

48. While there is a distinction between the utilitarian value of a plea of guilty (which has been quantified by the Act) and the reduction in sentence on the basis of an offender’s facilitation of the administration of justice (of which the sentencing judge was plainly aware), it was not an error for her Honour to refrain from making an additional discount for the latter by reason of making full allowance for the former. The sentencing judge’s reasons sufficiently explain why allowing the full 10% discount for the utilitarian value of the plea did not leave room, in the particular circumstances of the present case, for “an additional quantified reduction on sentence to acknowledge the facilitation of the administration of justice inherent in the efficient conduct of the trial.”

49. Ground 2 has not been made out.

Ground 4: alleged manifest excess

50. As neither ground 1 nor ground 2 has been made out, it is necessary to address ground 4, alleged manifest excess. Whether a sentence is manifestly excessive is a conclusion and does not depend on the demonstration of patent error: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J). To make out this ground, the applicant must establish that the sentence is “unreasonable or plainly unjust”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]-[29] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

51. Mr Game submitted, by reference to Veen (No 2), that the applicant had, in effect, been sentenced to a greater term of imprisonment than if she had not suffered from the mental abnormality of which the jury can be taken to have been satisfied.

52. One of the difficulties with this submission is that it posits the wrong counterfactual (which was the error made by the sentencing judge in Nguyen, which was corrected by this Court). But for the jury’s satisfaction of both limbs of s 23A of the Crimes Act (substantial impairment that was so substantial as to warrant liability for murder being reduced to manslaughter), the applicant would have been convicted of murder, for which the maximum penalty is life imprisonment and the standard non-parole period is 20 years’ imprisonment.

53. In R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep), this Court (Gleeson CJ, Grove and Ireland JJ agreeing) was persuaded that the sentence imposed on the respondent for manslaughter (on the ground of substantial impairment) was manifestly inadequate and upheld the Crown appeal. Gleeson CJ considered the various types of manslaughter and the approach that ought be taken to respond to the sentencing for unlawful homicide, including on the basis of diminished responsibility and said:

“The crime of manslaughter comprehends all forms of punishable homicide other than murder (Crimes Act 1900, s18). For presently relevant purposes, the crime of murder is taken to have been committed where the act of the accused, causing death, was done with intent to kill or inflict grievous bodily harm, or with reckless indifference to human life. Some forms of manslaughter, such as that with which we are presently concerned, involve 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 involve an intent to kill or inflict grievous bodily harm, or reckless indifference to human life. They may, for example, involve causing death by an unlawful and dangerous act.

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 is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.

At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case (R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.)

When the basis of a finding of manslaughter is diminished responsibility, pursuant to s23A of the Crimes Act, what is nevertheless ordinarily involved, and what is involved in the present case, is a conclusion that the taking of human life was the consequence of a deliberate and willed act, performed with intent to kill or cause grievous bodily harm, or with reckless indifference to human life. 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 the capacity for self control which results from the abnormality of mind diminishes the responsibility, but it does not excuse the act. (R v Low (1991) 57 A Crim R 8).

Making a judgment as to the extent to which, in a given case, responsibility is diminished, can be a difficult task. The hypothesis, however, is that the offender is responsible for a deliberate act which took the life of another person, and which, but for the abnormality of mind, would bear the character of murder.”

54. Gleeson CJ also referred to the need for a sentence imposed in circumstances such as the present to reflect “the objective seriousness of the case and, in particular, the circumstance that what was involved was the felonious taking of human life with intent to kill or cause grievous bodily harm.”

55. Parliament has fixed the maximum penalty for manslaughter at 25 years’ imprisonment. Although the types of manslaughter are many and various and include voluntary and involuntary manslaughter, the maximum penalty (which is an important “guidepost”) is the same for all types of manslaughter. It is the objective facts and circumstances of the case which determine its objective seriousness and not the category of manslaughter to which it belongs: R v Isaacs (1997) 41 NSWLR 374 at 381E (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ); R v Dally (2000) 115 A Crim R 582; [2000] NSWCCA 162 fat [64](h) (Smart AJ, Sully J and Carruthers AJ agreeing).

56. The appropriateness of a life sentence (the then maximum penalty for manslaughter) for manslaughter on the ground of diminished responsibility was confirmed in Veen (No 2) at 476 and by the Court’s dismissal of the appellant’s appeal against the life sentence imposed on him for manslaughter: see also R v Cooper (Court of Criminal Appeal (NSW), 24 February 1998, unrep) at 25 (Gleeson CJ, Ireland and Bruce JJ agreeing).

57. In the present case, the gravity of the offending, as demonstrated by the objective circumstances, was very high. It was open to the sentencing judge to find that it was in the worst category of cases and to arrive at a starting point of 24 years’ imprisonment (before the application of the 10% discount for the plea). It was, in my view, open to her Honour to find that the reduction in the applicant’s moral culpability ought not lead to a lesser sentence, in circumstances where her liability had been reduced from murder to manslaughter on the grounds set out in s 23A of the Crimes Act (thereby giving rise to the need to avoid double-counting, as referred to by Johnson J in R v Tarrant and R v Reid (No 2)). Further, future dangerousness was plainly a relevant factor which tended, as in Veen (No 2), to balance out any diminution of moral culpability. The reasons of the sentencing judge show that her Honour took into account all relevant circumstances, including the lack of any significant criminal history, the loss of control, the diminution in the applicant’s moral culpability, the various conditions which afflicted her as well as the objective facts and circumstances.

58. While the sentence imposed was undoubtedly high, the crime was so serious that it was open to the sentencing judge, consistently with the principle of proportionality (which operates as both an upper and a lower limit), to impose the sentence which was in fact imposed.

59. For these reasons, I am not satisfied that ground 4 has been made out.

Proposed orders

60. I propose the following orders:

1. Leave to appeal granted.

2. Dismiss the appeal.

61. HAMILL J: On 20 July 2019 Jessica Camilleri (“the applicant”) killed her mother in horrific circumstances. She was arrested after being observed carrying her mother’s decapitated head in the street near her home. Ms Camilleri has substantial mental health issues. Over time, experts for both parties explored those issues. Ms Camilleri was charged with murder. Her lawyers raised the issue of her fitness to stand trial when the matter was in the Local Court, but in accordance with the legislative scheme, she was committed for trial on 27 March 2020. Ms Camilleri was first arraigned in the Supreme Court on 19 June 2020 and stood trial for murder before Wilson J and a jury between 30 November and 10 December 2020. The only issue for the jury was whether she was substantially impaired under s 23A of the Crimes Act 1900 (NSW), whereby her liability would be reduced to manslaughter. The jury returned a verdict of not guilty of murder but guilty of manslaughter.

62. The jury’s verdict established that Ms Camilleri committed each of the elements of murder but that, at the time she did so, she was substantially impaired by a mental health or cognitive impairment and the impairment was so substantial that it warranted her criminal liability being reduced to manslaughter. ^[1]

    1. Crimes Act 1900 (NSW), s 23A.

61. On 12 March 2021 Wilson J sentenced Ms Camilleri to imprisonment for a period of 21 years and 7 months, with a non-parole period of 16 years and 2 months. The maximum penalty for manslaughter is 25 years. The “starting point” for the sentence imposed on Ms Camilleri was 24 years, which was reduced by a 10% sentencing discount. The proximity between the statutory maximum and the starting point reflected Wilson J’s conclusion that “the offender’s disabilities cannot require a sentence substantially less than the maximum sentence available.” ^[2]

    2. R v Camilleri [2021] NSWSC 221 at [111] (“Sentencing Judgment”).

62. Ms Camilleri seeks leave to appeal against the sentence and relies on three grounds of appeal. A fourth ground of appeal was abandoned on the hearing of the appeal on 30 September 2022. ^[3] The grounds of appeal ultimately pressed were in the following terms:

“1. The sentencing judge erred in her Honour’s assessment of the ‘gravity of the crime’.

2. The sentencing judge erred in failing to discount the applicant’s sentence for her acceptance of responsibility and willingness to facilitate the administration of justice.

4. The sentence was manifestly excessive.”

3. See Tcpt, 30 September 2022, pp 2(30)-3(9)

65. I would uphold grounds 1 and 2 and have concluded that a less severe sentence is warranted and ought to be imposed. ^[4] If the sentencing discretion is to be exercised afresh, it is unnecessary to resolve ground 4. However, if I am wrong in accepting the applicant’s arguments under ground 1, I should make it clear that I would have upheld ground 4. I would grant leave to appeal and allow the appeal. In exercising the sentencing discretion afresh, I would impose a sentence of 16 years and 6 months, with a non-parole period of 12 years.

    4. Criminal Appeal Act 1912 (NSW), s 6(3).

66. These are my reasons for those conclusions. They assume familiarity with the sentencing judgment which is available on Caselaw NSW and other legal websites: R v Camilleri [2021] NSWSC 221.

The facts of the offence

67. At paragraphs [4]-[30] of the sentencing judgment, Wilson J set out the facts of the offence and some of the surrounding circumstances. This summary was based on the evidence adduced at the trial. What follows is derived from her Honour’s factual findings which were not disputed on the hearing of the sentence appeal. ^[5] The sentencing Judge said at [14] that what happened between the killing and the arrival of police at the scene “can only be pieced together from the crime scene evidence, the evidence of Dr Jennifer Pokorny, Forensic Pathologist, and, with a degree of caution, the offender’s accounts to others of what took place”.

    5. Applicant’s Written Submissions at [7] (“AWS”); Respondent’s Written Submissions at [4] (“RWS”).

68. At the time of the offence, the applicant was 25 years old. She was living with her mother (“Mrs Camilleri”). Mrs Camilleri was the applicant’s sole carer. ^[6]

    6. Sentencing Judgment at [4].

69. On 19 July 2019, the day before she was killed, Mrs Camilleri took the applicant to St Marys Police Station and requested a police officer speak to the applicant about calling random telephone numbers and verbally abusing the recipient of the calls. ^[7] Earlier that day, the applicant made something like 30 calls to an unknown man culminating in her telling him that “she hoped he got cancer and died.”

    7. Ibid at [5]-[6].

70. On the morning of 20 July 2019, the applicant became unhappy because a young relative, referred to as “Child A”, was present at the home where only the applicant and her mother lived. ^[8] She became further agitated when her mother went to assist a neighbour who was experiencing chest pains. She repeatedly called Child A “little bastard” and told Mrs Camilleri, “[y]ou have that little bastard too often”. ^[9] Her mother drove the neighbour to a doctor’s surgery, and the applicant and Child A went with her. A neighbour saw the applicant “yelling and throwing her arms about”, “angry” about a man in the street looking at her, and “swearing and screaming at her mother” for “always embarrassing” her. ^[10]

    8. Ibid at [7].

    9. Ibid at [8].

    10. Ibid at [9].

71. On the evening of 20 July, the applicant, Mrs Camilleri and Child A returned home. The applicant’s condition had deteriorated to the point that her mother called a home doctor service. The doctor was told that the applicant had “stomach or gastrointestinal problems”. Dr Eliza Azam arrived at 9.25pm to assess the applicant. The applicant was on the ‘phone organising food delivery. Her mother asked her to end the call so that the doctor could examine her. She refused to do so and remained on the ‘phone for another 10 minutes. Dr Azam then left. ^[11]

    11. Ibid at [11]-[12].

72. At some time after 10pm, Mrs Camilleri was so concerned about the applicant’s behaviour that she thought the applicant should be taken to hospital. When Mrs Camilleri attempted to telephone an ambulance, the applicant tried to stop her and there was a struggle over her mother’s ‘phone, which the applicant managed to take from her. ^[12] Mrs Camilleri then walked to the applicant’s bedroom to get the applicant’s ‘phone so that she could call an ambulance. The applicant followed her and a struggle ensued in the bedroom. ^[13]

    12. Ibid at [15]-[16].

    13. Ibid at [17].

73. The applicant knocked her mother to the ground, dragged her by her hair into the kitchen and restrained her. Wilson J found the method of restraint was “very likely with the weight of her body”. The applicant then used a number of kitchen knives to inflict “an indeterminate but very high number of knife blows at her mother’s head and neck, ultimately decapitating Mrs Camilleri at the C2 vertebra”. ^[14]

    14. Ibid.

74. Dr Pokorny, who performed the autopsy on Mrs Camilleri, found “at least 100 stab wounds and incised wounds” on the mother’s face and head, including wounds that passed through the right eye socket and into the brain lining. The tip of Mrs Camilleri’s nose had been cut off. The plate on which Mrs Camilleri’s brain sat was pierced. Mrs Camilleri’s tongue had been removed as a result of the wounds causing the decapitation. Mrs Camilleri also had 33 wounds on her right hand and 62 wounds on her left hand which were “defence injuries”. Both of Mrs Camilleri’s eyeballs had been removed. At some point during the attack, the applicant stabbed her mother through a significant vein in the neck, while her mother was upright or semi-upright and breathing. Mrs Camilleri probably died soon thereafter. The applicant used a total of seven separate knives during the attack, four of which broke. ^[15]

    15. Ibid at [18]-[22].

75. Child A, then aged 4 years, attempted to stop the applicant at one point during the attack. He jumped on her and struck out at the applicant with the cardboard lid of a toy box. When the applicant went to push Child A off her, she caused a deep wound in his cheek and lacerated his head and hands. Child A vomited at some point during the incident. ^[16]

    16. Ibid at [23]-[24].

76. The applicant went out onto the street holding her mother’s severed head. The evidence suggested she dropped it on the footpath, picked it up, walked further down the street, and dropped it again. She attended a neighbour’s home and asked for emergency services to be called. She also called 000 using a mobile and asked for police and ambulance to attend. ^[17]

    17. Ibid at [25]-[26]

77. When police arrived, the applicant gave an account of what happened to police, which was recorded by body-worn video. That recording was tendered at trial. The applicant claimed that she acted in self-defence and that her mother tried to kill her with a knife. ^[18] However, when the applicant spoke to a forensic psychiatrist, Professor David Greenberg, she said she did not act in self-defence, was “hacking like a butcher” and twisted her mother’s head off her body. ^[19] Wilson J found that “the attack upon Mrs Camilleri was entirely unprovoked, and represented nothing more than an expression of the offender’s rage at her mother for her attempt to call an ambulance”. ^[20]

    18. Ibid at [27].

    19. Ibid at [30].

    20. Ibid at [29].

The applicant’s mental illness and cognitive impairment

78. It is necessary to set out in detail the evidence of the applicant’s mental health issues and cognitive impairment. It is appropriate to do so because these conditions are central to the key issues raised in this appeal. They are relevant to the questions raised by the first ground of appeal which concern factors relevant to the objective gravity of the offence. The applicant’s mental condition is also relevant to the second ground of appeal, because the diagnoses and legal impact of the conditions explain why an offer to plead guilty to manslaughter was not made in the Local Court and leads to the submission that there should have been a “discount” for the applicant’s facilitation of the course of justice. Fundamentally, the impact of her condition on the proper exercise of the sentencing discretion is multifaceted and informs the arguments as to whether the sentence was manifestly excessive and whether a different, less severe, sentence was warranted and ought to have been imposed: Criminal Appeal Act 1912 (NSW), s 6(3).

79. The mental health history was lengthy and complex, and the diagnoses made over many years were inconsistent. The applicant had various conditions or impairments and their interrelationship was complicated. The evidence came before Wilson J in three stages of the curial process. Some of the evidence was tendered on an application for a judge alone trial, resolved by her Honour on 24 July 2020. Other parts of the evidence were tendered in the jury trial, while further material was adduced in the sentence proceedings. The abandonment of the third ground of appeal – which complained of a denial of procedural fairness based on the use evidence tendered in the pre-trial proceedings – and the conduct of the appeal by both parties means there is no issue that the evidence tendered on the judge alone trial application is admissible and relevant to the appeal and the question of sentence.

Summary of applicant’s mental health history

80. The applicant’s past engagement with mental health services was set out in reports provided by the psychiatrists Dr Furst (dated 10 June 2020) and Professor Greenberg (dated 21 April 2020). Dr Furst’s and Professor Greenberg’s reports were part of the evidence on the application for a judge alone trial.

81. The histories described in those reports included the following:

1. As a juvenile, the applicant was diagnosed with various conditions including a mild intellectual disability, low intelligence quotient (“IQ”), attention deficit and hyperactive disorder (“ADHD”), developmental delay, attachment disorder, impulsivity and “anger management” issues. She was also treated for depression, anxiety and violent behaviour.

2. As an adult, the applicant was diagnosed by several medical practitioners with a wide array of conditions. She was diagnosed with mood instability, ADHD, intellectual disability, low IQ, obsessive compulsive disorder (“OCD”), poor anger control, impulsive behaviour, anxiety, panic disorder, intermittent explosive disorder, bipolar type II, type II diabetes and bronchial asthma. Histories were taken concerning her anger management issues and aggressive behaviour, difficulty coping with frustration, low level of adaptive functioning and competence for everyday tasks, extreme sensitivity and poor coping skills in negative and stressful environments. She was prescribed mood stabilising, antidepressant and antipsychotic medications.

3. The applicant was admitted to Nepean Hospital for psychiatric treatment three times in 2018. The first admission followed an incident where the applicant assaulted a member of the public. She was diagnosed with an acute manic episode with psychotic features and was treated with a sedative along with mood stabilising, antipsychotic and antidepressant drugs. The second admission followed an incident where the applicant harassed a member of the public. Her mental state examination showed no evidence of psychotic illness, but she was prescribed antipsychotic medication. The third admission followed a similar incident, with no abnormality detected on examination.

4. On 5 April 2019 the applicant was reviewed by the Nepean Blue Mountains Local District Mental Health Service due to her escalating pattern of conduct involving telephoning strangers obsessively. It was noted that between December 2018 and April 2019, that is after the time of the incidents referred to in the preceding paragraph, the applicant was not complying with her prescribed regime of medication but was seeing a naturopath, taking herbal medicicnes and receiving hypnotherapy. A mental health examination found she had no formal thought disorder, hallucinations or delusions. However, she was diagnosed (for the first time) with autism spectrum disorder.

82. The evidence at trial included the testimony of Professor Greenberg, who was called by the prosecution and Dr Furst, who was called by the applicant. In the sentencing judgment her Honour said there “was no material distinction in the evidence the doctors [Greenberg and Furst] respectively gave as to the offender’s mental state”. ^[21]

Professor David Greenberg

21. Ibid at [55].

83. Professor Greenberg was retained by the respondent, initially to provide an opinion as to the applicant’s fitness to stand trial and to advise on the issues of substantial impairment and mental illness. He had two consultations with the applicant and had been provided with a large body of material documenting the applicant’s mental health history and the circumstances of the killing. His met with the applicant on 8 and 11 April 2020 for 2½ hours on each occasion. His first report dated 21 April 2020 was comprehensive, spanning 88 pages. He provided a supplementary report dated 21 May 2020 when he was invited to review the psychological report of Yiota Zingirlis.

84. Professor Greenberg described the applicant as having a “complex psychiatric presentation with multiple psychiatric diagnoses and other psychological problems.” He referred to the “historical diagnostic uncertainty” in the applicant’s case and explained the possible reasons for this uncertainty. He posited that the “comorbidity” and absence of any singular diagnosis may explain the past uncertainty concerning the nature and treatment of her condition. He expressed the opinion that the past failure to diagnose autism resulted from the fact that the applicant “does not present with many of the typical autistic spectrum disorder features (Asperger’s syndrome)”. These matters contributed to the failure of treatment and medication in the past.

85. Professor Greenberg described the applicant “as childlike and naïve in her manner” and said she had “obviously poor self-esteem and was insecure as a person.” She spoke rapidly, exhibited mild anxiety and was “loquacious, overinclusive and circumstantial in her thoughts”. She “reiterated details of her mother’s killing in a concrete matter of fact manner [and] tone without any emotion or any emotional remorse”. During the interview she said she “wanted to suffer because she had killed her mother” but Professor Greenberg said there “was no evidence of any emotional component to this statement.”

86. Professor Greenberg reported that the applicant denied that she experienced auditory or visual hallucinations, paranoia, grandiosity, delusions, and disorder of thought control during the offence. Professor Greenberg’s opinion was that the applicant did not have a psychotic disorder, psychotic symptoms or major mood disorder at the time of the offence. He noted that “disease of the mind” was a legal, rather than a medical concept and that “an intellectual disability per se would be uncommon to qualify for a mental illness defence”. He spoke of her “numerous comorbid psychiatric disorders”, but stated that it did not support a defence of mental illness based on her suffering from “an intellectual disability and autistic spectrum problem”.

87. Professor Greenberg was of the opinion that the applicant was aware of the nature and quality of her acts and had the capacity to judge whether her actions were right or wrong. Professor Greenberg found:

“[The applicant] appears to have a good memory of the alleged offence and has given several detailed accounts of what occurred that evening to various people. She reports she acted in self-defence because her mother had enough of her and was going to call the ambulance to take [her] to the mental health unit at Nepean Hospital. She alleges that once she tried to grab her mother’s phone, her mother slapped her and grabbed her hair. She alleges she acted in self-defence. In my view, she alleges her actions were justified because her mother initiated the fight and she suffers from various mental disorders and a disability. Given the above history, in my view there is no justification to believe she was labouring under defect of reason caused by any disease of the mind at the time of the alleged offence.”

88. Professor Greenberg concluded that the applicant met the diagnostic criteria for:

1. Intellectual disability disorder.

2. Autistic spectrum disorder.

3. Intermittent explosive disorder.

89. He also found that the applicant had features or traits of:

1. Personality problems with narcissistic features.

2. OCD.

3. Depression and anxiety.

4. ADHD.

90. Professor Greenberg agreed with Ms Zingirlis that the applicant would have a simple understanding of moral wrongfulness, due to her intellectual disability and autistic spectrum disorder. Nevertheless, Professor Greenberg maintained that she did not qualify for the defence of mental illness because she was able to give a detailed rational account of her actions, demonstrated a capacity for a degree of rational judgement and understanding of what she was doing.

91. Professor Greenberg’s was of the opinion that the applicant’s complex psychiatric condition substantially impaired her capacity to control herself during the offence:

“I am of the opinion that based on her comorbid psychiatric diagnoses, in particular her diagnosis of intermittent explosive disorder, her capacity to control herself was substantially impaired by her abnormality of mind arising from her underlying conditions.”

92. Professor Greenberg analysed the matters that led hm to conclude that the applicant was substantially impaired:

1. The applicant had a history of aggressive outbursts of violence where she failed to control her anger and rage. These outbursts were impulsive and anger-based rather than premeditated.

2. The applicant told police and ambulance officers, she “was in a fit of rage and couldn’t stop herself” and repeatedly asked them if her mother was dead, if they could bring her back to life and whether they could reattach her head. These statements demonstrate her low intellectual functioning, intermittent explosive disorder, comorbid diagnoses and her emotional immaturity during the offence.

3. The applicant has a fascination with horror movies, and she identifies with the “macabre acts” in these movies “as a way of dealing with her own feelings of low self-esteem, humiliation, disempowerment, low self-concept and poor sense of tolerance frustration”.

93. Professor Greenberg explained that “her capacity to reason with a moderate degree of sense and composure was not absent or so markedly lowered [to qualify for a mental illness defence] but [was] in keeping with psychiatric diagnoses.” The applicant’s “empathy deficiencies” was part of “her already stated symptoms of her comorbid psychiatric diagnosis”.

Dr Richard Furst

94. Forensic psychiatrist Dr Richard Furst was briefed by the applicant’s Legal Aid lawyers to prepare two reports. The first, dated 10 June 2020, was directed to the applicant’s fitness to be tried, substantial impairment under s 23A, and whether she was mentally ill at the time she killed her mother. A second report, dated 10 February 2021, was prepared for the sentencing hearing and addressed her risk of re-offending, prognosis, prospects of rehabilitation and whether her mental health may make her incarceration more onerous. Dr Furst reviewed similar material to that considered by Professor Greenberg. He had previously consulted the applicant following an incident involving her grandmother in 2014 and consulted her for the purposes of the homicide case on 15 May 2020 and 21 January 2021.

164. I will apply a total discount of 17.5% to the sentence I would otherwise have imposed.

165. I would commence with a total sentence of 20 years imprisonment. That sentence will be reduced by three and half years, resulting in a total sentence of 16 years and 6 months. I find that there are special circumstance warranting a reduction in the non-parole period. These concern the fact the sentence will be particularly onerous on the applicant, the complexity of her mental health conditions and consequent need for a very long period of support and supervision in the community. However, the adjustment will be very modest because the non-parole period must also reflect the seriousness of this offence. I propose a non-parole period of 12 years (being a little less than 73% of the total sentence).

166. Accordingly, the sentence I propose is 16 years and 6 months imprisonment with a non-parole period of 12 years.

Orders

185. I propose the following orders:

1. Grant leave to appeal.

2. Allow the appeal.

3. Quash the sentence imposed on 12 March 2021 and in lieu thereof the applicant is sentenced to a non-parole period of 12 years commencing on 20 July 2019 and expiring on 19 July 2031, with a balance of term of 4 years and 6 months expiring on 19 January 2036.

4. The applicant will be eligible for release to parole at the expiration of the non-parole period.

5. The applicant is advised that the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) apply to her case and the Court directs the applicant’s legal representative to explain the implications of that statute to the applicant.

186. CAVANAGH J: I have received the judgments of both Adamson JA and Hamill J. I am grateful for their Honours’ extensive analyses.

187. It is not necessary that I reiterate the circumstances of the offending, the submissions of the parties or all of the relevant parts of the sentencing judgment. Further, I do not intend to rehash their Honours’ analyses but rather state the basis upon which I would allow Ground 1 but not Ground 2 of the appeal.

Ground 1

188. I agree that the applicant’s criticisms of the sentencing judgment are largely unwarranted. I also agree with their Honours’ analyses in respect of the relationship between objective seriousness or gravity and moral culpability. They are separate but related concepts.

189. To the extent that the applicant submits that the sentencing judge erred in failing to have regard to reduced moral culpability in assessing objective seriousness, that proposition must be rejected. So much is clear from DS v R; DM v R [2022] NSWCCA 156 (“DS and DM”).

190. In that case at paragraphs [63] to [96], the Court (per Beech-Jones CJ at CL, N Adams and Cavanagh JJ) undertook a lengthy analysis of the relationship between the two principles, having regard to the submissions of both applicants that there had been an error in failing to have regard to moral culpability whilst assessing objective seriousness.

191. As the Court concluded at [128]:

“[128] The principal contention made in support of this ground was that the sentencing judge erred in failing to “take into account [DM’s] moral culpability in assessing the objective seriousness of this offence”. For the reasons addressed above, the proposition that an assessment of moral culpability informs or is part of the assessment of the objective seriousness of the offence is rejected.”

192. However, in a passage to which both Adamson JA and Hamill J refer at [96] of DS and DM, the Court also observed that mental illness may be a relevant factor in assessing both objective seriousness and moral culpability. Whilst objective seriousness and moral culpability are separate but related concepts, a mental illness which contributes to the offending may be a factor relevant to the objective seriousness of the offending. For example, when assessing objective seriousness, a Court might distinguish between a planned or premeditated event and one which arises spontaneously stemming from of a loss of control caused by the mental illness from which the offender was suffering.

193. That much is probably uncontroversial. It is also uncontroversial that the assessment of objective seriousness is a matter within the sentencing judge’s discretion.

194. However, the important question which arises on this appeal is the extent to which mental illness is a factor in the exercise of a sentencing discretion, in circumstances whereby the applicant has been acquitted of murder but convicted of manslaughter pursuant to s 23A of the Crimes Act. In other words, to what extent should mental illness be taken account of in the exercise of the sentencing discretion when the applicant has already been convicted of a lesser offence than they might otherwise have been, having regard to that mental illness.

195. Plainly, Adamson JA and Hamill J take different approaches to that important question.

196. Adamson JA emphasises, like the sentencing judge, that it is important to avoid double counting in the sentencing exercise and that the sentence must be proportionate to the crime. Having regard to the fact that the applicant was convicted of manslaughter rather than murder pursuant to s 23A, the role that mental illness played in the circumstances of the offending may have already been given effect.

197. It seems to me that this is the point of principle which arises in this appeal. The applicant submitted on sentence that her mental illness and cognitive impairment should substantially reduce her sentence, both because her level of impairment was greater than that required to make out the partial defence of substantial impairment, and in accordance with the principles emanating from DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; 2010 NSWCCA 194 (“De La Rosa”).

198. However, as expressly stated, the sentencing judge was not persuaded that anything said in R v Keceski (unreported, NSWCCA 10 August 1993) required any amelioration of sentence beyond that which flows from the proper application of the De La Rosa principles. Her Honour identified those principles in paragraph [84] of the sentencing judgment and then made a finding in respect of amelioration of moral culpability at [85], as follows:

“84. Those principles are enumerated as follows, omitting the citations given in the original:

“Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing:

1. Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.

2. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.

3. It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced.

4. It may reduce or eliminate the significance of specific deterrence. 

5. Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence”.

85. It is clear that this is an offence to which the offender’s impairments materially contributed, and there can, as a consequence, be some amelioration of moral culpability. However, as I earlier noted, the reduction in the offender’s moral culpability cannot be complete since she well understood the nature of her act, and also well understood how very wrong it was.”

199. Her Honour accepted that there would be some amelioration of moral culpability but did not accept that it could be complete (I assume meaning significant), based on her Honour’s findings that the applicant well understood the nature of her actions and how wrong they were. Those findings were open to her Honour, albeit they say nothing about the full extent of the applicant’s mental and cognitive conditions.

200. This Court is a court of error. Whether different findings in relation to moral culpability might also have been open is not to the point.

201. However, her Honour did not consider that the applicant’s mental illness had any role to play in assessing the objective seriousness of the offending. This is clear from her Honour’s observation that the applicant had already had her liability reduced from murder to manslaughter solely because of her substantial impairment.

202. With respect to her Honour’s remarks under the heading “Mental Illness and Sentence”, I took her Honour to be finding that whilst the applicant’s mental illness and cognitive impairment gave rise to some amelioration in moral culpability, it was not otherwise a relevant sentencing factor. That is because her Honour did not consider that anything said in R v Keceski required any reduction in sentence beyond that permitted by the proper application of De La Rosa principles.

203. It is notable that in DS and DM, the Court observed that an offender’s mental impairment would affect both the assessment of moral culpability and objective seriousness, even following a reduction in liability from murder to manslaughter because of substantial impairment (pursuant to s 23A of the Crimes Act, as in the present case). Of course, nothing in DS and DM suggests that an offender’s mental or cognitive impairment must always impact upon objective seriousness where s 23A of the Crimes Act is enlivened.

204. Referring specifically to DS and DM at [96], Adamson JA concludes that a reduction in objective seriousness by reference to mental impairment in the present case would essentially ‘double count’ the effect of the mental illness, in light of the conviction for manslaughter rather than murder because of substantial impairment.

205. I disagree on that point for the following reasons.

206. In Hoare v The Queen (1989) 167 CLR 348 at 354, Mason CJ, Deane, Dawson, Toohey and McHugh JJ observed that:

“…a basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances…”

207. As observed by Johnson J in Tepania v R (2018) 275 A Crim R; [2018] NSWCCA 247 at [112]:

“In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J).”

208. The applicant has been sentenced for manslaughter. As is well-known, the offence of manslaughter encompasses a range of facts and circumstances. Of course, the sentencing judge was well aware of that and I reject the applicant’s rather exaggerated submission about the effect of her Honour’s approach as set out in paragraphs [82] and [83] of the sentencing judgment. Plainly, her Honour was not sentencing as if the applicant had been convicted of murder. On her Honour’s analysis, future dangerousness was an important sentencing factor, as it is in the resentence suggested by Hamill J.

209. The question which remains is thus whether the need to avoid double counting in sentencing for this type of offence is such that the otherwise important role that mental illness might have to play in assessing objective seriousness should be diminished.

210. In Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14, the Court (per Mason CJ, Brennan, Dawson and Toohey JJ) said at 476:

“Prima facie, a mental abnormality which exonerates an offender from liability to conviction for a more serious offence is regarded as a mitigating circumstance affecting the appropriate level of punishment.”

211. In Tarrant v R [2018] NSWCCA 21, the Court (per Basten JA, RA Hulme J and Hidden AJ) said at [74]:

“There is no doubt that a central feature of the sentencing exercise was for the judge to determine the culpability of the offender and place it within the broad spectrum covered by the offence of manslaughter. In undertaking that exercise, he was required to act consistently with the jury’s verdict. The verdict of manslaughter reflected a view formed by the jury with respect to the operation of s 23A of the Crimes Act.”

212. Then, in R v Tarrant [2018] NSWSC 774, after referring to that passage, Johnson J said at [167]-[170]:

“167. That said, it is appropriate to refer to all the features of the offence to assist a conclusion concerning the overlapping features of objective criminality and moral culpability for this offence of manslaughter. The sentencing Court takes as a starting point the jury verdict and considers all the evidence for the purpose of the necessary assessment concerning the culpability of the Offender and to place it within the broad spectrum covered by the offence of manslaughter.

"168. This approach reflects the task undertaken by Courts in cases such as R v Keceski (Court of Criminal Appeal, 10 August 1993), R v Blacklidge (Court of Criminal Appeal, 12 December 2015); R v Cooper (Court of Criminal Appeal, 24 February 1998); Catley v R at [42]-[47]; R v Fiona Barbieri at [87]-[88]; R v Jenbare [2016] NSWSC 1317 at [43]-[45] and Ukropina v R [2016] NSWCCA 277 at [35]-[39].

169. Of course, the Court does not disregard the evidence of the substantial impairment when sentencing for manslaughter. However, one does not approach the issue on sentence as if it had not already played a major role in reducing the Offender’s liability from murder to manslaughter.

170. To the extent that a decision on sentence requires the Court to take into account principles with respect to the mental condition of the Offender, applying the well-known principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at 43 [177], it is necessary to bear in mind that aspects of this evidence have already been taken into account by the jury in returning a verdict favourable to the Offender.”

213. See also his Honour’s observations in R v Reid (No 2) [2021] NSWSC 475 at [129].

214. I do not read the comments of Johnson J in either Tarrant or Reid as suggesting that the Court should not have regard to all of the relevant sentencing factors in sentencing for this type of offence. I do not take his Honour to be suggesting that the Court should not have regard to a significant mental illness from which an offender was suffering in assessing objective seriousness, for example, in determining whether the actions were planned or spontaneous or arose from a complete loss of control due to the mental illness. Rather, I take his Honour to merely be suggesting that due regard must be had to the basis of the manslaughter conviction, that is, s 23A of the Crimes Act. Much may depend on the extent of the mental illness or cognitive impairment.

215. Indeed, this is what was meant by the Court in DM and DS at [96], to which there has already been extensive reference. The Court in that case provided examples of circumstances in which an offender’s mental impairment may affect the assessment of both moral culpability and objective seriousness in a case of manslaughter under s 23A of the Crimes Act, including where an offender damaged property during a period of psychosis which fell short of what might establish a mental illness defence. Whilst the extent to which any mental illness or cognitive impairment impacts upon moral culpability and objective seriousness may be different, a consideration of the impact and degree of the impairment as it relates to objective seriousness is not precluded by the principle of double counting.

216. Such an approach is consistent with the principle that it is necessary to have regard to all sentencing factors in sentencing for manslaughter (even manslaughter which arises pursuant to s 23A of the Crimes Act) and the point made by Johnson J that it is important to have regard to the fact that the offender has had their conviction reduced because of their substantial impairment.

217. This is also consistent with what was said in R v Keceski; that it is necessary to consider the extent to which the offender’s acts were really affected by their mental condition, starting from the position that his or her mental condition was substantially impaired. It is consistent with the approach in other cases such as that of N Adams J in R v Scott (No 3) [2021] NSWSC 1646 at [27], as well as that of Ierace J in R v Hill [2019] NSWSC 733 at [45], neither of whom suggested that the need to avoid double counting meant that a mental impairment of such significance was diminished when assessing objective seriousness.

218. Further, this approach is harmonious with the observations of Beech-Jones J (as his Honour then was) in R v MB [2017] NSWSC 619 at [59]:

“Where a person is guilty of manslaughter by reason of s 23A, the offender’s mental state and the impairment of their faculties are, in a sense, elements of the offence and it must follow that a consideration of them cannot be divorced from any consideration of the objective circumstances of the offending.”

219. I agree with Hamill J’s analysis of the medical evidence and the impact of the applicant’s conditions on the nature of the offending. In my view, consistently with R v Keceski, the need to consider these matters is not diminished by the fact that the applicant had been convicted of manslaughter rather than murder. Nor is it diminished on the basis of the need to avoid double counting.

220. Specifically, I agree with his Honour’s observations that the spontaneity of the crime demonstrated a complete absence of planning or premeditation and that the loss of control caused by the applicant’s mental impairment continued for the duration of the attack. Those are factors which are relevant to the assessment of objective seriousness. They are factors which should be taken into account in assessing the objective gravity of the offending, consistently with R v Keceski.

221. The sentencing judge took account of the applicant’s mental illness in assessing moral culpability (but only to a limited extent) and did not consider that it had any further role to play in the sentencing process (i.e. in assessing the gravity of the offence). For the reasons set out by Hamill J on this aspect, I consider that the sentencing judge erred in that approach.

222. The sentencing judge gave such weight to various factors as she considered appropriate and I do not disagree with the approach of her Honour on Ground 1, except for this point. I am not in any way disagreeing with the description of the horrific nature of the crime but, like Hamill J, I consider that error has been established.

Ground 2

223. Again, it is not necessary that I repeat the analyses undertaken by both Adamson JA and Hamill J with respect to Ground 2 of the appeal.

224. The applicant accepts that she was entitled to no greater discount than 10% for her offer to plead guilty. However, the applicant submits that she should have been entitled to an additional discount under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSP Act”) on the basis of her assistance in facilitating the administration of justice.

223. Section 22A is in the following terms:

“Power to reduce penalties for facilitating the administration of justice

(1) A court may 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 or during the trial or otherwise).

(2) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.”

226. Two things might be said about s 22A, being:

1. firstly, it does not mandate the imposition of a lesser penalty. It merely specifies that “the court may impose a lesser penalty…having regard to the degree to which …”. It follows that the Court must have regard to the degree to which the administration of justice has been facilitated but any decision to impose a lesser penalty remains within the discretion of the Court; and

2. secondly, as set out in s 22A(2), any lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offence.

227. The Court is thus required to assess the extent to which the administration of justice has been facilitated by the applicant and consider whether a lesser penalty should be imposed (having regard to all relevant matters), whilst ensuring that any lesser penalty is not unreasonably disproportionate to the nature and circumstances of the offence.

228. The applicant submits that the sentencing judge erred in determining whether there should be any additional discount for her facilitation of the administration of justice, in that her Honour erred in having regard to s 25F(2) of the CSP Act. That is based on the following passage from the sentencing judgment (at [69]-[70]):

“69. In this instance, I am not persuaded that, despite the provision in s 25E(3)(b) the offender should receive a discount on sentence which is greater than that provided by statute. A 10% discount represents a level of discount which is adequate to acknowledge the offender’s willingness to plead guilty to manslaughter once the issue of fitness was resolved, and the utilitarian value of the offered plea, but does not offend against the principle embodied by s 25F(2), which provides for a reduced or no discount where it is determined that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence could not be met by a sentence incorporating the discount. It is not strictly necessary to make a finding of that nature here, since the offender will receive the discount mandated by the Division. My conclusion is that no greater discount should be awarded.

70. For the same reason, I do not propose to allow an additional quantified discount on sentence to acknowledge the facilitation of the administration of justice inherent in the efficient conduct of the trial. A reduction in sentence of 10% overall is sufficient.”

229. As observed by Hamill J, s 25F relates only to sentencing discounts applied under Part 3, Div 1A. It does not apply to any discount assessed under s 22A of the CSP Act. At least in my view, that much is clear.

230. However, contrary to the applicant’s submission, I do not consider that the sentencing judge did apply s 25F(2) or was constrained by s 25F(2) in determining that no additional discount should be given for the applicant’s facilitation of the administration of justice.

231. I consider that when her Honour stated (at [70]) “[f]or the same reason, I do not propose to allow an additional quantified discount”, her Honour was referring back to what she had said about the offence being so extreme that the community’s interest in retribution, punishment, community protection and deterrence could not be met by a sentence incorporating the discount. I take her Honour to have meant that those factors militated against the additional discount sought by the applicant in respect of her facilitation of the administration of justice, rather than that she was in some way constrained by s 25F(2) in affording such an additional discount.

232. Whether an additional reduction in sentence should be afforded under s 22A is a matter for the sentencing judge. This is not a case in which the sentencing judge has failed to consider s 22A or whether there should be any additional reduction on sentence. Indeed, to the contrary, her Honour has identified the factors which led her to conclude that there should be no additional quantified discount for the applicant’s facilitation of the administration of justice.

233. There was no error in that approach. Indeed, it seems to me to be consistent with subss 22A(1) and (2). The point at which I diverge from Hamill J on Ground 2 is thus in the identification of error. I do not consider that her Honour erred and I would reject Ground 2.

Resentencing

234. I agree with Hamill J’s resentencing. His Honour adopts most of the findings of the sentencing judge. In particular, his Honour pays due regard to the significance of future dangerousness. Of course, having found error, this Court is engaged in the process of resentencing. Whether any additional reduction should be made under s 22A and the extent to which the applicant’s mental illness impacts upon both objective seriousness and moral culpability (as well as all of the other relevant sentencing factors) are considered afresh.

235. I thus agree with the orders proposed by Hamill J.

**********

Endnotes

Amendments

11 August 2025 - Amendment to [135]-[136] and [142].

Decision last updated: 11 August 2025