R v Bartlett

[2001] NSWSC 685

CITATION:	R v Bartlett [2001] NSWSC 685
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 70014/2001
HEARING DATE(S):	9 August 2000
JUDGMENT DATE:	9 August 2001
PARTIES :	Regina (Crown) Graham David Bartlett
JUDGMENT OF:	Hidden J at 1

COUNSEL :	P Dare (Crown) P Winch (Bartlett)
SOLICITORS:	Solicitor for Public Prosecutions (Crown) Legal Aid Commission (Bartlett)
CATCHWORDS:	CRIMINAL LAW - Sentence - manslaughter - substantial impairment
LEGISLATION CITED:	Crimes Act 1900
DECISION:	Sentenced to eight years imprisonment with a non parole period of four years.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J
9 August 2001
70014/01 - REGINA v GRAHAM DAVID BARTLETT

Remarks on Sentence

1 HIS HONOUR: The offender, Graham David Bartlett, was charged this morning with the murder of a man at a boarding house in Darlinghurst late last year. He pleaded not guilty of murder but guilty of manslaughter, and the Crown has accepted that plea in discharge of the indictment on the basis of substantial impairment under s23A of the Crimes Act . The Crown accepts that, on the occasion in question, the offender's capacity to control himself was substantially impaired by an abnormality of mind arising from an underlying condition, to use the language of that section.

2     The offender and the deceased had lived at the boarding house for some years. The offender occupied a room above that of the deceased. The deceased was given to complaining about the level of noise emanating from the rooms of other residents at the boarding house, including the offender's. For his part, the offender complained on a number of occasions about the smell of marijuana smoke which he believed to be emanating from the deceased's room and which he found particularly offensive.

3     On the evening of 25 October 2000, the deceased went to the offender's room to complain about the level of noise from the offender's television set. He entered the room, there was an altercation, and the offender attacked him with a hammer, striking him a number of times about the head. The deceased was taken to hospital, where he died of his injuries on 2 November 2000.

4     After the incident, the offender left the boarding house and for a time contemplated suicide. On 7 November 2000 he was located by police at the Matthew Talbot Hostel and was arrested. He has been in custody since that day.

5     He took part in an electronically recorded interview and admitted what he had done, saying that he must have had “a tantrum” or had “lost my temper or something”. As one would expect, the offence can be understood only in the light of the offender's background and his psychiatric history.

6     He is now fifty-one years old. He has no prior convictions and in the whole of the material before me, there appears to be no history of violence on his part. He appears to have been brought up in a somewhat dysfunctional family. His childhood was lonely and devoid of stimulation and affection. In his youth he had suicidal thoughts from time to time. He undertook secondary education although, as I understand it, he did not complete it and he has no tertiary qualifications. He did have unskilled employment for a time after leaving school but in more recent years he has been unemployed. He seems to have lived a solitary existence with little contact with his family, with no friends and no intimate relationships. It would seem that he has really never known happiness.

7     He has been given to what might be described as obsessive behaviour, being preoccupied with his health and his hygiene to an abnormal degree and, among other things, being unusually susceptible to unpleasant odours. It is this, in particular, which appears to have contributed significantly to the events of that tragic night.

8     I have the benefit of the reports of three well respected forensic psychiatrists, Dr Jonathan Carne and Dr Bruce Westmore, engaged by the offender's solicitor, and Dr Olaf Neilssen, engaged by the Crown.

9     Doctor Carne and Dr Neilssen both diagnosed a personality disorder with schizotypal traits and dysthymia, or chronic depression. In addition, Dr Neilssen thought that he probably had an obsessive compulsive disorder. Doctor Westmore's conclusion, although somewhat differently expressed, is to much the same effect. He diagnosed a long term depressive condition with “increasingly odd and eccentric behaviour with some compulsive and probably obsessive features”. All the doctors saw this psychiatric profile as the basis of the offender's behaviour on the night in question. Clearly, that is so.

10     Some months prior to the killing the offender had been prescribed medication for depression by a general practitioner but, unfortunately, he had not been taking it for a significant period before the incident. However, Dr Neilssen in his report noted that the offender has responded well in prison to anti-depressive medication. The doctor expressed the view that he needs long term psychiatric treatment.

11     I take into account the offender's plea of guilty to the alternative charge of manslaughter, which the Crown accepts has been offered at the earliest reasonable opportunity. Because of his obsessive traits, the offender has been on protection in prison and is likely to remain so for some time to come. That is a matter also properly to be taken into account. I think this incident is an isolated one and I do not believe that this man poses a threat to the community in the future.

12     Nonetheless, the sentence which I impose must reflect the objective gravity of the offence. Manslaughter necessarily embraces killings which, for one reason or another, are seen as less culpable than those which we classify as murder, but appellate courts have consistently enjoined sentencing judges not to lose sight of the fact that the crime involves the felonious taking of a human life.

13     It is common ground that there are special circumstances warranting a departure from the usual proportion between head sentence and non-parole period. Clearly, this is so in the light of the offender's background and his need for long term psychiatric treatment, which I believe would be assisted by his being subject to supervision and the sanction of parole for a lengthy period.

14     Graham David Bartlett, I sentence you to imprisonment for 8 years to date from 7 November 2000, with a non-parole period of 4 years.

15     I am indebted to counsel on both sides for their assistance in the matter.
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Last Modified: 09/14/2001