R v Santos

[2001] NSWSC 923

CITATION:	R v Santos [2001] NSWSC 923
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 70042 of 2001
HEARING DATE(S):	9 & 11 October 2001
JUDGMENT DATE:	12 October 2001
PARTIES :	REGINA v ROBERTO SANTOS
JUDGMENT OF:	Levine J

COUNSEL :	W Robinson Q.C. (Crown) L Flannery (Offender)
SOLICITORS:	Office of the Director of Public Prosecutions (Crown) Legal Aid (Offender)
CATCHWORDS:	Sentence - manslaughter - s 23A Crimes Act 1900 - substantial impairment by abnormality of mind
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Blacklidge (unreported, 12 December 1995) R v Connolly [2001] NSWSC 787 R v Dawney [1999] NSWSC 944 R v Thomson & Houlton [2000] 49 NSWLR 383 R v Veech [2001] NSWSC 68
DECISION:	See paragraph 39

[2001] NSWSC 923

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

70042 of 2001

JUSTICE DAVID LEVINE

FRIDAY 12 OCTOBER 2001

REGINA v ROBERTO SANTOS
Sentence

1 HIS HONOUR: On 9 October 2001 Roberto Santos was indicted for that he, on 23 October 2000, at Bankstown did murder Paul Gibney. To that indictment the accused pleaded not guilty to murder but guilty to manslaughter, that plea being accepted by the Crown.

2 There is no issue that the plea of guilty to manslaughter was founded in the operation of s 23A of the Crimes Act which provides a partial defence to murder based upon substantial impairment by abnormality of mind in the accused person.

3 A plea of guilty to manslaughter under s 23A is predicated upon the facts otherwise establishing the crime of murder beyond reasonable doubt but permitting the reduction of culpability to that of manslaughter when, on the balance of probabilities, the accused person who would otherwise be guilty of murder establishes that, at the time of the acts causing the death, that person's capacity to understand events or to judge whether his actions were right or wrong or to control himself, were substantially impaired by an abnormality of mind arising from an underlying condition and the impairment was so substantial as to warrant liability for murder being so reduced. Underlying condition means a pre-existing mental or physiological condition other than a condition of a transitory kind.

4 The offender stabbed the deceased 21 times, some of the stab wounds being compression wounds, that is requiring compression against the deceased's body in order for the blade to penetrate to the depth it did.

5 About four months prior to the events that occurred at Bankstown on 23 October the offender and his wife had separated and at about 4.40pm on the day he approached his wife at the Compass Centre car park wanting to know the real truth about her relationship with the deceased. In the material placed before me it points to a response from the offender's wife that the deceased was but a friend.

6 The offender and Ms Ramos waited for a while and went through the car park to permit her to buy a drink. He saw the deceased and walked over to him and asked, "What's the truth, what's the relationship with my wife?" to which the material points to the deceased replying, "I don't have nothing to do with you guys, this is your problem". Thereupon the offender punched the deceased who was knocked backwards and who thereafter tried to defend himself; both men then wrestled. The offender then produced a knife, opened it and repeatedly stabbed the victim in his head and body. The deceased began moving back from the offender's stabbing motions, the offender moved in towards the deceased, grabbed his clothing with his left hand and continued to stab him. The deceased gradually subsided in the process of defending himself whereupon the offender followed him to the ground still stabbing him whilst kneeling over him. The action was brought to an end by the arrival of two police officers.

7 As to the knife, it was one I accept in favour of the offender which he used for work and other innocent purposes. In the circumstances, however, it is to be noted particularly that he took the knife from his pocket, opened the blade, was seen to open it, and then employed it in the manner to which I have referred. The eye-witness accounts, particularly of Mr Petrov, Mr Chaloub and Mr Phan, tellingly describe the "unrelenting" violence of the use by the offender of the knife on his victim, the position of the offender and the victim to which I have referred, and for example, according to Mr Maietta, the changing of the grip on the knife and the direction of the blows. The "frenzied" nature of the attack was eloquently described by Mr Chaloub when he said that the offender was stabbing the deceased "like a maniac and would not stop".

8 The event occurred, as I have said, during a period of estrangement between the offender and his wife and in circumstances where this approach by the offender to his wife to inquire as to the true situation, I am satisfied, more probably than not led to a state of at least uncertainty in the offender's mind as to the veracity of his wife's response.

9 Be that as it may, for present purposes, the short recitation of the events in that car park satisfy me beyond reasonable doubt that the ingredients for the charge of murder are established and that the action of the offender in grabbing hold of the clothes of the deceased and then continuing to stab him and then kneel across him whilst the deceased was down, are consistent with an intention to kill formed when control was lost.

10 I make this finding as to the intent in the circumstances that, for the offender it was expressly submitted that I should find intention to cause grievous bodily harm, and for the Crown that I should find intent to kill. Unless the Crown case on murder was expressly left to the jury on one or other of the intent components, in the normal course it might not be known on what basis, if left as alternatives, the finding of guilty of murder by a jury was in that regard based.

11 The crime of murder is found upon the jury's verdict, though on sentence even in those situations the issue could arise. Otherwise on a plea this aspect has, for example, not been decided by Dowd J in Regina v Connolly [2001] NSWSC 787, and on the other in fact decided by Barr J in Regina v Dawney [1999] NSWSC 944.

12 The objective gravity arises further from the circumstances, as I set them out, of the killing which but for s 23A would be murder.

13 I am unable to accept the submission for the offender, leaving aside the s 23A component, that the objective criminality of the homicide was not high. Viewed objectively I find it to be of much significance that the knife was taken out, innocent otherwise though its possession was, the blade unfolded and that it was used in the manner I have described. The deceased was held in the manner I have described and the offender knelt over him, whilst the deceased was obviously disabled, and continued to attack.

14 In the course of her submissions the Crown Prosecutor submitted that the evidence in relation to a prior meeting during the course of the Olympic Games, about one month before the date of the homicide, points to the offender having “stalked” his wife. I am not persuaded that one event in the context of a three month or so separation, and what I am satisfied to have been uncertainty in the offender's mind as to the nature of the relationship between his wife and the deceased, warrants such a sinister description, even if there is some suggestion that he had otherwise been watching them. Nonetheless, the objective circumstances of the homicide are grave, in my view.

15 The evidence in support of those matters to which I have referred as provided for by s 23A is probative to the required level of probabilities in the reports of Dr Rosalie Wilcox and Dr William Lucas and that of the clinical forensic psychologist, Mr Taylor. In brief it is quite clear that in 1991 the offender suffered brain damage as a result of an accident, cognitive deficit and, at the relevant time, depression, behavioural changes in him having been noted not by any medical advisers after his discharge from hospital in 1991 but by others who knew him.

16 I am satisfied on the balance of probabilities that the offender at the time of the act was wanting in the capacity to understand events and to control himself by reason of substantial impairment by an abnormality of mind arising from the underlying condition of first, depression and second, the sequelae of the brain damage. Those conditions were pre-existing and were not of a transitory kind.

17 Dr Wilcox in her report of 20 September 2001 diagnosed:

"From the information I obtained from Mr Santos and from collaborative information provided by Antonio Sadsad and Bermah Deguzman I believe that as a result of the significant head injury Mr Santos has become more anxious, irritable and obsessional. He would probably fulfil the criteria for a personality change due to a general medical condition (closed head injury). In addition he would fulfil the criteria for a cognitive disorder not otherwise specified as he has some cognitive impairment, however his impairment is not severe enough to meet the criteria for dementia or an amnestic disorder.

I also believe that he was suffering from depression at the time of the alleged offence as he reported a depressed mood, poor sleep and suicide ideation. Dr Sue assessed him less than three weeks prior to the offence and found him to be depressed and prescribed antidepressant therapy and when a psychiatrist assessed him in custody three weeks after his arrest he was observed to have a severe depression. More recently his depression has been associated with psychotic symptoms, as he has reported the presence of a voice telling him to kill himself, and he is currently being managed by a combination of anti-depressant and antipsychotic medication."

18 And she said:

"Although he understood what he was doing and could judge whether his actions were right or wrong his ability to control himself was substantially impaired by an abnormality of the mind arising from an underlying condition."

19 Dr Lucas in his report of 2 October 2001 diagnosed:

"There are three important aspects to Mr Santos' psychiatric diagnosis. Following the accident in 1991 he suffered personality change becoming more irritable, prone to lose his temper and as well being obsessive in his thinking and behaviour. There is no evidence these problems predated the accident. Associated with the personality change is cognitive impairment which is broad-ranging and assessed as significant at neuropsychological examination two months after the accident. There is good evidence from people who know him, from the history he gave myself and Dr Wilcox and from his presentation at interview, supporting the view that problems have persisted. After problems arose with his wife and particularly after the separation, these personality problems and cognitive impairments were added to by depression which appears to have been of at least moderate severity and requiring antidepressant medication. Mr Santos remains depressed despite treatment and can be described as suffering from a major depressive episode. It is difficult to know whether his depression has worsened during imprisonment - it was noted to be severe three weeks after the incident - but he is now receiving antipsychotic medication, presumably because of what is considered auditory hallucinations.
I agree with Dr Wilcox that an appropriate diagnosis is personality change due to a general medical condition. At interview, cognitive impairment is most obvious in terms of his memory, attention and concentration. The diagnosis of cognitive disorder not otherwise specified is appropriate but adds little to a full description of the range of impairment. If Mr Santos had been working at other than a relatively unskilled occupation his disability level would have been more apparent
Mr Santos does not have a current medical diagnosis."

20 Dr Lucas went on to say:

"I believe that Mr Santos' depression added to his difficulties in understanding his wife's actions and resolving the issues which arose from them. His obsessive thinking was increased by the depression. Depression tends to cause cognitive difficulties and would have added to Mr Santos' pre-existing problems. Features of Mr Santos' personality change included irritability and other evidence of affective instability, a tendency to lose control, obsessiveness and there is some evidence of suspiciousness or paranoid thinking. These characteristics were probably exacerbated by depression and the stress of his marital situation.
His depression, personality change and cognitive impairment are abnormalities of mind, ones which are underlying and not transient or trivial in nature. In my opinion, Mr Santos' capacity to control himself was substantially impaired by an abnormality of mind arising from underlying conditions, personality change and cognitive impairment due to acquired head injury, and a depressive illness. Also, in my opinion, the same conditions would have impaired his capacity to understand events."

21 Thus it comes about that the offender stands to be sentenced for manslaughter for which the maximum penalty is 25 years.

22 As Gleeson CJ said in R v Blacklidge (unreported, 12 December 1995):

"The crime of manslaughter comprehends all forms of punishable homicide other than murder. 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.
When the basis of a finding of manslaughter is pursuant to s 23A of the Crimes Act, or diminished responsibility as it was then called, 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.
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."

23 I have had regard to comments to a similar effect by Wood CJ at CL in R v Veech [2001] NSWSC 68 paras 39 to 42.

24 As his Honour the Chief Justice said, a judgment as to the extent to which responsibility is diminished by the matters referred to in s 23A can be a difficult task. It was contended for the Crown that the substantial impairment here identified is not of a high order notwithstanding the brain damage and depression, given that the offender otherwise has been able to lead an ordinary working life with his wife and family up until the separation some months before the incident.

25 The starting point, however, is that the section speaks in terms of "substantial impairment" and it must be taken that that impairment identified was substantial. Putting the matter that way merely highlights the difficulty in formulating the judgment to which the Chief Justice referred which, no doubt, can admit of varying degrees once it is accepted, that on the probabilities the impairment was substantial.

26 I do not propose to make a finding on any scale of substantial impairment. As a matter of reality that is extraordinarily difficult and on the material in the expert's reports it is clear that loss of control on the part of the offender flowed from that impairment which was substantial. I am in no position otherwise than to state that the evidence supports the plea on the basis of substantial impairment in Mr Santos. In the words of the Chief Justice said, the offender “is responsible for the deliberate act” which took Mr Gibney's life which; but for the substantial impairment, that act would bear the character of murder.

27 As I have found the objective circumstances are grave. The offender, however, is entitled to be considered for sentence for manslaughter by reason of the operation of s 23A and the substantial impairment which I have found.

28 There is no issue between the offender and the Crown that Mr Santos is entitled to the benefit of his plea of guilty as if it had been at the first available opportunity. I propose to give the offender the benefit of that plea by reducing by twenty five percent the head sentence that I would consider otherwise applicable. That percentage reduction I arrive at giving due weight to the quite overwhelming case of remorse and contrition evidenced during the record of interview and the walk-around on the day of the homicide and to utilitarian considerations.

29 It is the former that provides the benefit to the offender but not at the expense in any respect of the latter however. Otherwise to allocate a percentage for genuine contrition having done so wrongful a deed and another percentage for utilitarian considerations, becomes quite artificial, if not impossible. In any event I am of the view that my allocating that percentage does not derogate from the range of principles considered generally by the Court in R v Thomson and Houlton [2000] 49 NSWLR 383 particularly at 411-2.

30 The offender is 47 years of age without prior convictions and it is clear that no sentence otherwise than one of imprisonment is appropriate.

31 General deterrence is not a significant factor in arriving at penalty, though the consideration of “dangerousness” is. In this regard the material before me is of some but not much utility. I am not in a position to find beyond reasonable doubt that Mr Santos is dangerous. Indeed on the probabilities I find that he is unlikely again to offend in circumstances where the principal condition of depression properly can be treated. He has been in custody since 23 October 2000.

32 It was submitted for the offender that there were special circumstances for the purpose of the application of s 44(2) of the Crimes (Sentencing Procedures) Act 1999. He is, of course, to serve his first and one would hope, last term of imprisonment and it will not be easy.

33 During the course of his custody to date he has successfully completed Relaxation, Concentration, Mediation and Stress Management classes and is currently employed and is suitable for employment within the prison system. Conformably, as I understand it, with the depression, he remains depressed with a flat affect but there are no perceptible circumstances evident but there are sleeping difficulties. The document dated 25 October 2000, tendered for the offender, from the Corrective Services Health Department, discloses that at that time he was not in receipt of antidepressant medication.

34 It would certainly be desirable that upon the commencement of his sentence, once formally imposed, that the prison medical authorities be provided with the material relating to the head injury in 1991 and the psychiatric and psychological material provided to the Court, so that any treatment and management regime can be put in place during the course of custody and promoted to ensure that it is continued during the period of parole.

35 I am not satisfied, however, that there are any special circumstances attending the offender that would warrant, in terms of any extension of time or the requirement for a regime to be in place during a lengthy period of supervision on parole.

36 I have received as Exhibit B a Victim Impact Statement under s 25 of the relevant legislation. I do, of course, acknowledge its receipt and indicate that I understand perfectly the grief and distress in Mr Gibney's family members arising from the sudden and brutal death of their son, brother and brother-in-law.

37 The exercise in weighing the objective criminality of this serious homicide that would otherwise have been the crime of murder with the subjective matters attendant upon the offender, is a difficult one but more so, as I hope I have indicated, when one is confronted with the matter in diminution of culpability, namely, his substantial impairment at the time by abnormality of mind. The offender, however, remains responsible for the deliberate act which took Mr Gibney's life.

38 There is an abundance of evidence that he was aware that he would be punished for what he quickly realised was the awful wrong he had done. Having made allowance for the plea to the extent to which I have indicated, I propose to impose a total head sentence of seven years imprisonment.

39 Roberto Santos, you are convicted of the offence of manslaughter. I sentence you to imprisonment for a term of seven years to date from 23 October 2000 and to expire on 22 October 2007. I fix a non-parole period of five years and three months to expire on 22 January 2006 at which time you will be eligible for release to parole. Such parole should include conditions as to supervision of treatment found to be required for depression or any other psychiatric condition.

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Last Modified: 10/22/2001