R v Simon Alexander Jude Pfitzner No. Sccrm-97-4 Judgment No. 6124 Number of Pages 2 Criminal Law

[1997] SASC 6124

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

COX, MILLHOUSE and LANDER JJ

Criminal law - jurisdiction, practice and procedure - judgment and punishment appeal against sentence - manslaughter - Klinefelter's syndrome - violent crime - non-parole period as proportion of head sentence.

ADELAIDE, 14 March 1997 (hearing), 29 April 1997 (decision)

#DATE 29:4:1997

#ADD 4:6:1997

Appellant:

Counsel - Mr W Braithwaite

Solicitors - Mr W Braithwaite

Respondent:

Counsel - Ms P Kelly

Solicitors - DPP (SA)

Order: appeal dismissed.

COX J

1. In my opinion this appeal should be dismissed. I agree with the reasons of Millhouse J.

MILLHOUSE J

2. On 15 September 1994 the appellant, then aged 35, went to visit his mother (he was an adopted child) at her flat in Nailsworth. She was 72.

3. He was burning with a sense of indignation and great resentment because he had, in the preceding months, found out that his mother, when he was 12 years old, had consented to his being sent to Hillcrest Mental Hospital. He was in that hospital until he was 14: he was mistreated by fellow patients and abused. He blamed his mother for allowing him to be put in there. He had become obsessed about his incarceration.

4. The appellant suffers from a disability known as Klinefelter's Syndrome. He was born with it. Dr Raeside, the psychiatrist, gave evidence that people with this condition "suffer excessive height" (the appellant is a big man), have "small and undeveloped genitals" and "also have a number of mental problems". In particular a person with Klinefelter's Syndrome is less able to control his temper and is given to outbursts of violent temper. That is not to say, though, that he is not able to control his temper or loses the ability to distinguish right from wrong.

5. The appellant has had other medical problems as well - perhaps brain damage at birth, injuries a few years ago in a motor accident and damage to his brain when a shunt had to be inserted a few years ago.

6. When he visited his mother on 15 September, he reproached her. He was in a psychotic state. He became angry. He stabbed his mother 19 times in the back and on the head and he broke her back. She died.

7. The appellant tried to conceal what he had done. He was arrested the next day and has been in custody ever since.

8. He was charged with murder. At his first trial he was found not guilty of murder but guilty of manslaughter. He was sentenced to 12 years imprisonment with a 10 year non-parole period. I was a member of the Court of Criminal Appeal which then ordered a new trial. [Before the hearing of this appeal I checked with both counsel: neither objected to my being a member of the Court.] Duggan J, sitting without a jury, at the second trial, convicted the appellant again of manslaughter and gave him 11 years with a 9 year non parole period. His Honour sentenced on the basis of an unlawful and dangerous act. This is an appeal against that sentence.

9. Mr W F Braithwaite, who has appeared for the appellant throughout, argued that the sentence was too high, given the appellant's acknowledged mental condition: he is like he is because of that mental condition: the learned judge had not sufficiently taken it into account: the sentence could only have been appropriate for someone of sound mind who would not attract considerations of mercy as this man should do. Mr Braithwaite cited a number of other sentences for manslaughter to shew that this one is unfairly high in comparison.

10. This was, though, a most horrible, violent crime and matricide. It was, as Miss P Kelly, for the Director of Public Prosecutions submitted, at the upper end of the scale of seriousness. Certainly both judges who have sentenced the appellant have said how serious a case of manslaughter it is and I agree.

11. I cannot accept Mr Braithwaite's submissions. From his sentencing remarks Duggan J did take into account the appellant's mental condition:- " You were an adopted child and it is clear from the evidence, and the reports of the psychiatrists who have examined you, that you suffer from a combination of psychiatric problems. You were born with Klinefelters syndrome, a chromosome disorder which can give rise to personality problems, as has occurred in your case. You also suffer from a psychotic illness rendering you liable to delusions and though disorder. There is also evidence of physical damage to your brain. ... I accept that there is a strong possibility that your psychiatric condition had an important bearing on your conduct."

12. As for the argument that this sentence is unfair in comparison to others, every crime of manslaughter is unique: the circumstances of a manslaughter are infinitely variable and therefore the sentences too. Direct comparison with other cases is inappropriate: with manslaughter it is impossible to find any standard of sentencing.

13. Apart from the head sentence Mr Braithwaite complained that the non parole period was too high a proportion of the head sentence: the Parole Board will not have sufficient time to do much for the appellant when he is paroled. I doubt that - probably not much less than two years on parole is a good long time. In any case for the appellant to be at liberty, even though under supervision, in less than 9 years from committing such a hideous crime, would not be right.

14. When I read the sentencing remarks it did not occur to me that either the head sentence or the non parole period was excessive, let alone manifestly excessive. Having heard the argument I am of the same opinion still.

15. I suggest that the appeal be dismissed.

LANDER J

16. In my opinion this appeal should be dismissed. I agree with the reasons of Millhouse J.