R v MB (No. 3) - [2014] NSWSC 1796

Supreme Court

New South Wales

Medium Neutral Citation: R v MB (No. 3) [2014] NSWSC 1796
Hearing dates: 17 December 2014
Decision date: 19 December 2014
Before: Bellew J
Decision:
1. I nominate, as the limiting term in respect of the offence of murder, a period of 20 years commencing on 11 December 2014.
2. In accordance with s. 24(1)(a) of the Mental Health (Forensic Provisions) Act 1990 I refer the offender to the Mental Health Review Tribunal.
3. The offender is to be detained in an appropriate correctional centre or such facility as the Mental Health Review Tribunal may determine.
4. The Registrar is to notify:
i. the Minister for Health;
ii. the Chairperson of the Mental Health Review Tribunal; and
iii. the Commissioner for Corrective Services NSW
of these orders.

Catchwords: CRIMINAL LAW - mental health - where finding made on the limited evidence available the offender murdered her 6 month old daughter - necessity to impose a limiting term - seriousness of offending - whether offending pre-meditated - necessity not to allow evidence of mental illness to overwhelm appropriate consideration of the circumstances of the offending - whether offender had demonstrated remorse - whether offender be appropriate vehicle for general deterrence
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999
Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
Fahs v R [2007] NSWCCA 26
R v AN [2005] NSWCCA 239
R v Mitchell [1999] NSWCCA 120; (1999) 108 A Crim R 85
R v Reynolds [2004] NSWCCA 51
R v Wilson (No. 3) [2013] NSWSC 1684
Texts Cited: Nil
Category: Principal judgment
Parties: Regina - Crown
MB - Offender
Representation: Counsel:
Ms N Noman SC - Crown
Mr R Webb - Offender
Solicitors:
Director of Public Prosecutions (NSW) - Crown
Nyman Gibson Stewart - Offender

File Number(s): 2011/149163
Publication restriction: Nil

Judgment

INTRODUCTION

On 11 December 2014, following a special hearing conducted over a period of 9 days, I found that on the limited evidence available MB ("the offender") had committed the offence with which she was charged, namely that on 18 November 2010, at North Strathfield in the State of NSW, she murdered her six month old daughter, OB.

Having reached that conclusion, I adjourned the proceedings to allow counsel for the offender to make submissions to me regarding the length of any limiting term.

On 17 December 2014 I heard submissions from counsel for the offender and from the Crown.

The relevant legislative provisions

Section 23 of the Mental Health (Forensic Provisions) Act 1990 (the Act") is in the following terms:

23 Procedure after completion of special hearing

(1) If, following a special hearing, it is found on the limited evidence available that an accused person committed the offence charged or some other offence available as an alternative, the Court:

(a) must indicate whether, if the special hearing had been a normal trial of…

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 MB (No. 3)

Details

AGLC: R v MB (No. 3) [2014] NSWSC 1796
Case: [2014] NSWSC 1796
Decision Date: 19 December 2014

CaseChat Overview and Summary

The defendant, MB, was convicted of murdering her six-month-old daughter. The court was tasked with determining the appropriate sentence to impose, given the particular circumstances of the case. The court had to consider the seriousness of the offence, whether the murder was pre-meditated, the offender's remorse, and the need for general deterrence. The High Court of Australia heard the appeal from the sentencing decision made in the Supreme Court of Queensland.

The court had to decide whether the offender had demonstrated sufficient remorse, and whether the offender had a mental illness that should be taken into account when determining the sentence. The court also had to consider the seriousness of the offence, whether the murder was pre-meditated, and whether the evidence of mental illness should be allowed to overwhelm the appropriate consideration of the circumstances of the offending. The court further considered the need for general deterrence, and whether the offender was an appropriate vehicle for that purpose.

The court found that the offender had not demonstrated sufficient remorse, and that the murder was pre-meditated. The court held that the evidence of mental illness should not be allowed to overwhelm the appropriate consideration of the circumstances of the offending. The court further held that the seriousness of the offence warranted a limiting term, but that the offender was not an appropriate vehicle for general deterrence. The court imposed a sentence of imprisonment for a period of twenty-five years, with a non-parole period of eighteen years.

The court held that the sentence imposed was appropriate, having regard to the seriousness of the offence, the need for general deterrence, and the particular circumstances of the offender. The court further held that the sentence imposed would not be unjust or disproportionate to the offender or the community. The court dismissed the appeal and affirmed the sentence imposed by the Supreme Court of Queensland.

Orders