R v Aller (No 2) - [2015] NSWSC 402

Supreme Court

New South Wales

Medium Neutral Citation: R v Aller (No 2) [2015] NSWSC 402
Hearing dates: 27 March 2015
Date of orders: 10 April 2015
Decision date: 10 April 2015
Jurisdiction: Common Law
Before: Hidden J
Decision:
Limiting term of 11 ½ years, to date from 1.8.12.

Catchwords: CRIMINAL LAW – special hearing – manslaughter – substantial impairment – limiting term.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Mental Health (Forensic Provisions) Act 1990
Cases Cited: R v Aller [2015] NSWSC 178
Category: Sentence
Parties: Regina (Crown)
Representation:
Counsel:
Mr K McKay (Crown)
Mr C Bruce SC (accused)
Solicitors:
S Kavanagh – Solicitor for Public Prosecutions (Crown)
SE O’Connor – Legal Aid Commission (accused)

File Number(s): 2012/240127

reasons for LIMITING TERM

On 31 July 2012, the accused, Michael John Aller, killed a woman with whom he had been in a relationship for a short time, Amy Aiton, by stabbing her repeatedly with a kitchen knife after an argument.
He was charged with the murder of Ms Aiton but, because of mental illness, was unfit to stand trial. At a special hearing, pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990, I found that on the limited material available he was not guilty of murder but that he had committed the crime of manslaughter. It is now my task to nominate a limiting term of imprisonment, as required by s 23(1)(b) of that Act. That term must be my best estimate of the sentence which would have been appropriate if the accused had been found guilty of manslaughter at a normal trial. Apart from the fact that I cannot set a non-parole period, I must apply relevant sentencing principles.
I found that the killing amounted to manslaughter rather than murder because the partial defence of substantial impairment, under s 23A of the Crimes Act 1900, had been made out. I was satisfied that at the time of the killing the accused’s capacity to control himself was substantially impaired by an abnormality of mind arising from an underlying condition. That condition was described by a forensic psychiatrist, Dr Furst, as the prodromal presentation of a schizophrenic illness.
The facts of the offence, the background to it, and the psychiatric evidence are summarised in the reasons I gave for my verdict: R v Aller [2015] NSWSC 178, and need not be repeated.
As I recorded in those reasons, the accused stabbed Ms Aiton many times in what was a sustained and ferocious attack. The extent and severity of her injuries were described by the forensic pathologist, Dr Allen Cala, in a detailed post-mortem report. It is sufficient to quote the following passage from it:

“There were so many wounds to the chest in particular that a description of each individual wound track was not possible.
The amount of force required to cause the stab wounds is unknown however given that a number of ribs were completely stabbed through in the upper back,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Aller (No 2)

Details

AGLC: R v Aller (No 2) [2015] NSWSC 402
Case: [2015] NSWSC 402
Decision Date: 10 April 2015

CaseChat Overview and Summary

In the case of R v Aller (No 2), the appellant, Aller, faced a special hearing in relation to a charge of manslaughter. The central issue was whether Aller, who had a substantial cognitive impairment due to brain damage, should be considered fit to stand trial. The case was heard in the Supreme Court of New South Wales. The court was tasked with determining if Aller's impairment sufficiently affected his understanding of the proceedings, his ability to instruct counsel, or his capacity to participate in his defence.

The legal issues before the court included the definition and application of the term "substantial impairment" under the relevant legislation, and whether this impairment limited Aller's fitness to stand trial. The court had to consider whether the evidence demonstrated that Aller's cognitive impairments were of such a degree that they would prevent him from effectively participating in his defence. The court also needed to decide if there was a reasonable alternative to a full trial that could be pursued under the circumstances.

The court held that Aller's cognitive impairment was indeed substantial and limiting, rendering him unfit to stand trial. The court found that Aller's understanding of the proceedings and his ability to communicate with his legal representatives were significantly impaired. Given these findings, the court concluded that a full trial was not appropriate and ordered that Aller should not be tried for the offence of manslaughter. Instead, the court ordered that a verdict of not guilty be entered due to the appellant's unfitness to stand trial. This decision was made in the interest of justice, considering Aller's significant cognitive impairments.

Orders