R v Nixon

[1992] QCA 216

IN THE COURT OF APPEAL  [1992] QCA 216

SUPREME COURT OF QUEENSLAND

C.A. No. 152 of 1992

T H E   Q U E E N

v.

JOHN NIXON
  (Respondent)

ATTORNEY-GENERAL OF QUEENSLAND
  (Appellant)

JUDGMENT OF THE COURT

Delivered the 22nd day of July, 1992

The Attorney-General has appealed against the sentence imposed upon John Nixon who pleaded guilty on 24 April 1992 to the manslaughter of his wife between 6 January and 10 January 1991. Nixon had been in custody for a little more than a year when he was sentenced.  The sentence imposed was imprisonment for five years with a recommendation that parole be considered after one year of that period.
     Mr Nixon is 61 years of age, and he and his wife enjoyed a happy marriage until their relationship deteriorated after he developed Parkinson's disease about 11 years prior to the killing. The disease was not diagnosed for about half that time, following which Mr Nixon was treated with various drugs.  The disease is progressive and irreversible, and its symptoms include uncontrollable tremors exacerbated by emotional stress and degeneration of the brain cells accompanied by intellectual decline.  Other problems which affected the relationship between Mr Nixon and his wife were produced by the drugs used to treat his disease.
     Mr Nixon found it increasingly difficult to bear his wife's attitude to him as he perceived it, and it seems that he previously considered killing her but did not do so because of what he regarded as an improvement in their relationship.
     On the morning in question, Mrs Nixon proposed to go out unaccompanied by Mr Nixon, which he regarded as intolerable.  He placed Mogadon sleeping tablets in her coffee and later, when she was asleep, beat her to death with a pick-handle.  He then cut up her body, distributed the pieces in various locations to prevent it being found and fabricated excuses for her absence. 
The Mental Health Tribunal found that Mr Nixon was not of unsound mind within the meaning of section 27 of the Criminal Code when he killed his wife, and that he was fit to stand trial although he was suffering from diminished responsibility at the time of the killing.
     Evidence before the Tribunal included reports from a number of psychiatrists and a clinical psychologist, and the testimony of three of the psychiatrists and the psychologist.
     Two of the psychiatrists who were called and the psychologists were of opinion that Mr Nixon's abnormality of mind was such as substantially to impair his capacity to understand what he was doing, his capacity to control his actions and his capacity to know that he ought not to act as he did.  The third psychiatrist was of opinion that Mr Nixon's substantial impairment related only to his capacity to control his actions.
     The Director of Prosecutions argued before the Tribunal, before the sentencing Judge and before this Court that Mr Nixon's conduct, including his conduct after the death of his wife, indicated planning, deliberation and no or insubstantial impairment of Mr Nixon's capacity to understand what he was doing or to know that he ought not to act as he did.  The Tribunal said:

"There is some force in Mr Martin's argument that the patient's accounts of what occurred and his conduct after the killing are susceptible of the interpretation that the patient was well aware that he ought not to have done the killing and that he understood what he was doing when he drugged and killed his wife. However, it is not necessary that the Tribunal make any finding as to the impairment of the patient's capacity to know that he ought not do the act or of his capacity to understand what he was doing to determine the issue. 

The Tribunal is satisfied to the high level of satisfaction required that at the relevant time the patient was suffering from an abnormality of mind induced by disease such as to substantially impair the patient's capacity to control his actions and so finds. Such a conclusion is amply supported by the medical evidence before the Tribunal and the test results and opinion of Ms. Field which confirm such a conclusion. The Tribunal is satisfied that the patient's capacity to control his actions and to divert from the course he had adopted particularly after he had administered the drug was substantially impaired. 

Although Ms. Field was strongly of the opinion that the patient was not fit for trial, which was originally the view of Dr. Lawrence, the view of the medical witnesses including Dr. Lawrence was that on balance the patient is fit for trial although there is some risk of a catastrophic reaction if not handled with care at trial and the Tribunal so finds."

It was unnecessary for the performance of the Tribunal's functions for it to make any findings concerning Mr Nixon's capacities to understand what he was doing or to know that he ought not to act as he did, or any more precise findings concerning the degree of impairment of his capacity to control his actions.
     When the matter came before the sentencing Judge, no real attempt was made to clarify these issues.  The prosecution asserted that "this is a very bad case of manslaughter ...".  It was also stated, inaccurately, that

"... the doctors found that the only incapacity was to control his actions and that meant he knew what he was doing.  He knew he ought not to do the act but in some way his control of his actions was diminished. ... ."

It was also stated:

"... we would say, if anything, the diminishment would be at the lower end of the scale; that is, it has got to be not total but  not trivial and we would rather say that all the surrounding circumstances before and after the death would indicate that it is at the bottom of the scale of diminishment."

Although the submissions of counsel who represented Mr Nixon before the sentencing Judge do not contain an express rejection of that proposition, such an attitude was clearly implicit from the tenor of the statements which were made and the course which was adopted, which included tendering various of the psychiatric reports.
     That was obviously understood by the sentencing judge, who referred to Mr Nixon killing his wife "... in circumstances where ... it has been concluded that you were incapable of controlling your actions."  As was pointed out by counsel for the Attorney-General in this Court, that is an overstatement.  Nonetheless, what was said demonstrates that it was the sentencing judge's opinion that Mr Nixon was severely impaired in his capacity to control his actions at the time when he killed his wife.
     Such a view is supported by evidence which was available to the sentencing Judge; for example, a statement by one of the doctors that Mr Nixon's "mental control had been severely weakened by brain disease."  While it is regrettable that this critical issue was not more fully analysed and made the subject of specific findings below, the Attorney-General's attempt to have this Court conclude that the circumstances before and after the killing objectively demonstrated "... the degree of diminishment of the capacity to control ... to be at the lower end of the scale" cannot succeed. 
     It was not disputed that, for sentencing purposes, the degree of criminal responsibility is inversely related to the degree of impairment which exists (see, for example, Chambers (1983) 5 Cr.App.R.(s) 190), or that the other material circumstances in the present case are that Mr Nixon had no relevant criminal history and that the evidence was clear, and the sentencing judge found, that there is "... a very low or low risk of a recurrence of the sort of activity which leads to your being here."
     There is, understandably, a wide range of sentences appropriate in respect of the convictions for manslaughter based on killings by persons with diminished responsibility.  The sentencing judge referred to the killing as a "grievous offence" and a "completely abhorrent act", but concluded "that all the evidence seems to provide an explanation for your behaviour in terms of the onset and progression of the disease." He was fully justified in those findings. 
     Accordingly, in the special circumstances of this case, the sentence imposed was adequate.
     The appeal is dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 152 of 1992

T H E   Q U E E N

v.

JOHN NIXON
  (Respondent)

ATTORNEY-GENERAL OF QUEENSLAND
  (Appellant)

The President
               Mr Justice Davies
               Mr Justice Lee

Judgment of the Court delivered the 22nd day of July, 1992

The appeal is dismissed.       

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 152 of 1992

Before the Court of Appeal

The President

Mr Justice Davies

Mr Justice Lee

T H E   Q U E E N

v.

JOHN NIXON

Appellant

JUDGMENT OF THE COURT

Delivered the 22nd day of July, 1992

MINUTE OF ORDER:   The appeal is dismissed

CATCHWORDS:Criminal law - sentence - Attorney-General appeals against sentence of 5 years with recommendation after 1 year - whether inadequate given respondent 61 suffering Parkinson's Disease and consequential diminished responsibility - appeal dismissed

Counsel:Mr M. Byrne for the Appellant

Mr R. Collins for the Respondent

Solicitors:Director of Prosecutions for the Appellant

Legal Aid Office for the Respondent

Hearing Date:  15/7/92