Regina v Massei

[2005] NSWSC 1030

CITATION:	REGINA v MASSEI [2005] NSWSC 1030 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	13/5/05, 24/6/05, 8/7/05, 13/8/05, 3/8/05, 12/8/05, 2/9/05
JUDGMENT DATE :	2 September 2005
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
DECISION:	Proceedings adjourned for twelve months; Bail to continue; Liberty to the parties to apply to vary bail.

CATCHWORDS:

Sentence - manslaughter - mental illness - significance - time limits for orders under s11 Crimes (Sentencing Procedure) Act 1999

LEGISLATION CITED:

Crimes Act 1900 s23A
Crimes (Sentencing Procedure) Acrt 1999 s11
Mental Health (Criminal Procedure Act 1990 s38

CASES CITED:

Maxwell v The Queen (1995-1996) 184 CLR 501

PARTIES:

Regina

v

Marcelo Dario MASSEI

FILE NUMBER(S):

SC 2003/97

COUNSEL:

Mr J Kiely SC - Crown
Mr W Terracini SC - Offender

SOLICITORS:

I V Knight - Crown
Vivian Evans, Uther Webster & Evans - Offender

LOWER COURT JURISDICTION:

Ex tempore - revised

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

ADAMS J

2 September 2005

2003/97 REGINA v Marcelo Dario MASSEI

JUDGMENT

1 HIS HONOUR: On 30 September 2002 Marcelo Dario Massei killed his wife Alejandra Rosa Massei in the bedroom of their home in Rockdale. On 19 July 2004 Massei pleaded not guilty to the charge of murder on which he was arraigned but guilty of manslaughter on the grounds of substantial impairment under s 23A of the Crimes Act 1900. The Crown accepted this plea in full satisfaction of the indictment on the basis that, although at the relevant time Mr Massei intended to kill his wife, the Crown agreed that his capacity at that time to control himself and to judge right from wrong was so substantially impaired by an abnormality of the mind which arose from an underlying condition that his liability for murder was justifiably reduced to manslaughter.

2 The acceptance by the Crown of Mr Massei’s plea was, of course, based upon psychiatric opinion obtained from Dr Ellard, a very well qualified and experienced psychiatrist retained by the Crown. In due course the medical opinion available to the Crown or, at least, the Crown’s view of that opinion developed somewhat and an application was made that I should reject the plea and permit the Crown to present a fresh indictment against Mr Massei to enable the question whether there should be a special verdict under s38 of the Mental Health (Criminal Procedure) Act 1990. The Crown, in effect, submitted that the correct outcome of such a trial would be the acquittal of the accused upon the grounds of mental illness. For reasons sufficiently set out in my judgment of 13 July 2005, I rejected this application.

3 This brief history is sufficient to show that this case is not a simple one.

The facts

4 Precisely how Mrs Massei was killed by the offender is uncertain, although that he did so is clear. The objective facts are, in substance, indisputable. Mrs Massei died in the early hours of the morning of Monday 30 September 2002. She and the offender, who were both from Argentina, had been married in 1987 and migrated to Australia that year. They lived together in a small unit in Rockdale until they separated and Mrs Massei moved to a unit in Elizabeth Bay. They had no children. It appeared that, although separated, Mr and Mrs Massei remained on friendly terms and Mrs Massei occasionally stayed overnight with her husband at the Rockdale unit.

5 In August 2002 the offender travelled to Argentina and informed relatives of the separation of himself and his wife, returning to Australia in mid September. Shortly after his return Mr Massei discovered that his wife was involved in a relationship with another man. At about this time Mrs Massei started to receive threatening and obscene letters and telephone calls. She was so worried about this that she reported them to the police. She was convinced that the telephone caller was not her husband and the letters could not be identified as being in his handwriting. (It is important to understand that it was not the Crown case that Mr Massei was this person.) Indeed, on 19 September Mrs Massei stayed overnight with her husband in the Rockdale unit for security reasons. She returned to her own unit in Elizabeth Bay on 20 September and on 28 September stayed with Mr Massei once more at Rockdale.

6 On the morning of Sunday, 29 September Mrs Massei went to work and returned to the Rockdale unit once more that afternoon. In the evening of that day Mr and Mrs Massei visited the home of friends where they had dinner and a few beers. At some time between 11 pm and midnight the two went back to the Rockdale unit. At the time of their departure the other people at the dinner described them both as being in an apparently happy mood. In his interview with the police, Mr Massei said that he and his wife discussed their relationship and details of their separation when they arrived at the unit and then went to bed. There was no argument and no acrimony between them. They both slept in the same bed. A neighbour confirms that there were no sounds suggestive of an argument or any dispute coming from the unit.

7 According to Mr Massei’s account to police, he woke at about 4 am and struck his wife a blow to the left side of her face. This was with a large ornamental glass apple. The blow was a severe one that caused significant fractures. He then applied sufficient force to her throat to cause a fracture of the lower cricoid cartilage of the airway, obtained a fire accelerant, doused his wife with it and also two lounge chairs in the living room, to which he then set fire. Mr Massei then went into the bathroom and broke the window. He used his hand and sustained significant cuts to his right forearm. He then went to the kitchen, obtained a knife and inflicted serious wounds to his left forearm in an attempt to commit suicide. Not long afterwards, whilst the fire was progressing, Mr Massei collapsed on the floor in the main bedroom of the unit.

8 At about 4.30am the Fire Service was informed of the fire at the Rockdale unit and firemen attended. They broke the lock on the front door to gain entry, saw that the two lounge chairs were burning and the bed in the main bedroom was on fire. Mrs Massei was lying on the bed. She was dead and her body was severely charred. Mr Massei was unconscious, lying between the bed and the wall. He was extensively injured and covered in blood. A bloodstained knife about 15 centimetres long was discovered near his head.

9 Mr Massei was taken to St George Hospital where he was assessed by medical staff and treated in Intensive Care. He said that he had suffered the injuries to his arms whilst escaping from the fire through a window and denied any self-harm. He enquired about the wellbeing of his wife.

10 The direct cause of Mrs Massei’s death could not be determined, in part due to the severe charring of her body. There is no doubt, however, that Mrs Massei did not die of natural causes. There is no doubt that significant force was required to cause the fractures which I have already mentioned, which were associated with swelling, bleeding and a laceration. It is likely, but not certain, that the blow which caused the fractures would induce loss of consciousness. The neck injury did not have all the indicia of death by strangulation since neither the hyoid bone nor the thyroid cartilage were damaged. (Indeed, the pathologist thought that the neck injury was caused after death.) There was no sooting of the airways and the low carbon monoxide level in her blood establishes that Mrs Massei was dead before she was burnt by the fire. In the result, the pathologist concluded that the most probable cause of death was asphyxiation either by neck compression or suffocation. It is indisputable that Mr Massei was responsible.

Police interview and admissions

11 Mr Massei was interviewed by police while still at the hospital on 2 October 2002. His account was somewhat disjointed. He told police about the separation from his wife, he apparently had a clear memory of being with friends at their home on the evening before the fire; he described the sleeping arrangements and the time at which he and his wife went to bed. Mr Massei told police that he heard a noise; he went out to investigate and discovered the fire. He said that the windows exploded in the bathroom and that he got a knife and slashed his left forearm, saying that he wanted to kill himself because his wife was dead. He denied taking hold of his wife by her neck or grabbing her by the throat. (This summary gives a deceptive appearance of clarity to what was actually a quite disjointed and somewhat confused account of events.)

12 The offender had been arrested at the hospital on 30 September 2002 and, on his release from hospital, was remanded in custody. He was visited by Alicia Sciuto, a long time friend of him and his wife. Mr Massei told Ms Sciuto that he was directed by a voice that if he wanted to be with his wife he would have to kill her and kill himself. He said that he grabbed a glass apple and hit his wife on the head when she was in bed and tried to strangle her. He said that he had no memory of the fire. A few weeks later, Ms Scioto again visited Mr Massei in prison, on this occasion wearing a listening device. The conversation between the two was recorded. Amongst other things, Mr Massei repeated his statement about the voice controlling him, told her about having an “out of body experience” and how the deceased was sleeping and didn’t notice anything. He said that he killed the deceased with the glass apple and said that it all happened very quickly. He told her about a letter that he wrote to his parents in law stating that he did not expect their forgiveness because he could not forgive himself. In a letter to his parents in law Mr Massei stated that he caused his wife’s death and that he did not understand how it happened. He said that he was seeking “psychiatric and professional help to see if they can explain what came over my head and what is that lead me to something so terrible and painful”.

Substantial impairment

13 As I have mentioned, it is not disputed that, at the time he killed his wife, Mr Massei was suffering from a substantial impairment within the meaning of s 23A of the Crimes Act 1900. The underlying condition which brought about the abnormality of his mind was chronic and severe depression which Mr Massei suffered over the breakdown of his marriage and his separation from his wife. On 26 September 2002 Mr Massei had been admitted to the St George Hospital suffering from severe depression. He was assessed as within the emergency category of high risk, which required an immediate response to any crisis which might arise concerning him. The clinical notes refer to the history of the separation of Mr Massei from his wife in July 2002 and that after separation “patient felt very low in mood, sleep and poor appetite”. The notes also refer to Mr Massei’s having suicidal thoughts over the previous three weeks and thought about cutting his wrists. It was noted that he felt “bereft and unsure of the future and how he would cope without wife”. There was no evidence of psychosis. The notes refer to a phone call with Mr Massei who said that he was waiting for a visitor and that everything was okay.

14 There was abundant evidence from a number of witnesses who knew both Mr Massei and his wife to the effect that Mr Massei was very severely depressed and suicidal as a result of the separation.

15 Both the Crown and the defence retained the services of experienced psychiatrists. They were Dr Westmore, Dr Allnutt, and as I have already mentioned, Dr Ellard. Dr Westmore examined Mr Massei on 29 October 2002 and again on 19 August 2004. He provided reports on 31 October 2002, 11 November 2002, 23 August 2004 and 23 May 2005. Dr Ellard interviewed Mr Massei on 31 October 2003 and provided a report to the Crown on 3 November 2003. Dr Ellard later gave evidence in the course of sentencing proceedings on 13 May 2005.

16 In respect of his examination of Mr Massei on 31 October 2002 Dr Westmore formed the conclusion that, at the time he killed his wife and later cut his wrists and attempted to burn his flat, Mr Massei was suffering from a severe depressive illness, provisionally diagnosed as a major depressive illness and differentially diagnosed to include a major depression with psychotic features. Dr Westmore went on to say –

“Mr Massei was at the time he killed his wife suffering from a mental condition which, in my opinion, substantially deprived him of the capacity to know that he ought not to do the act that is, hit his wife with a heavy glass object and later attempt to strangle her. I believe the major depression, that is his mental condition, also substantially deprived him of the capacity to know that such an act was wrong. While he may have some understanding and appreciation that his actions were wrong in a legal sense, it is unlikely that he considered either the legality or the more subtle morality of his actions towards his wife.
His major depression overpowered his ability to consider his situation and his behaviour in a reasonable and rational fashion or to contemplate alternative behaviours or actions which might have led to a different outcome. He was, at the time of this incident, suicidal and his behaviour could also be seen as the behaviour of an extended suicide in the context of a major depressive illness.
His depression was precipitated by the separation from his wife and the possible ending of their relationship.
I understand that a bail application was heard on 3 October 2002. This was denied. In relation to any further bail application I would indicate that there is no evidence that Mr Massei represents a risk to the general community at this time. His greatest risk is to himself and he does remain an ongoing self-harm risk. He is significantly depressed and while acute or immediate self harm thoughts and behaviours have subsided, he is going to remain very vulnerable to potential self-harming behaviour for some weeks to come.
He is being treated with anti-depressants and this medication will need to continue for at least another twelve to eighteen months. It is relatively early days in the treatment of his condition and what course his illness takes can only be determined over the next few weeks or possibly months. At this time it would be wise for him to remain in either a secure environment or a highly supervise environment. Anything other than that type of psychiatric supervision would place him at significant risk at this time.
As noted in body of this report, Mr Massei is, in my opinion eligible for consideration by the courts as having the defence of substantial impairment to the charge of murder.”

17 On 11 November 2002, Dr Westmore reviewed medical reports received from St George Hospital, both of which noted the history of Massei suffering from a depression following the breakdown of his relationship with his wife. Dr Westmore supported the concerns expressed in those reports concerning Mr Massei’s need for psychiatric help.

18 In his report of 23 August 2004 Dr Westmore dealt with his reassessment of Mr Massei, whom he saw on 19 August. Dr Westmore noted that Mr Massei’s condition had improved. He was taking an anti-depressant. Dr Westmore considered that Mr Massei was not showing any evidence of suffering from a major depressive illness at this time nor were any psychotic symptoms such as delusions or hallucinations displayed or described. He concluded that his illness was currently in remission. Dr Westmore repeated his earlier conclusion that there was a direct and positive relationship between Mr Massei’s mental illness and the original offending behaviour and observed that, because he had already suffered one episode of depression, he is probably at a greater risk than the general population of suffering further episodes, although if or when this would occur it was not possible to predict. Dr Westmore thought that it was a good prognostic sign that Mr Massei responded well to anti-depressants and that, since taking them, his illness had remained in remission.

19 Dr Westmore’s view was that the incident involving the killing of Mr Massei was “in many ways very specific, occurring in the context of his intense relationship with his long-term partner”. Dr Westmore expressed the view that Mr Massei’s risks of re-offending should be negligible, probable non-existent, providing that his mental state remained stable. He concluded his report as follows –

“I would be recommending longer term community based psychiatric care and I think he has good insight into the fact that he has been mentally ill and that he is likely to comply with that requirement. The presence of ongoing family support along with other positive personality attributes are also generally good prognostic features”.

20 Dr Westmore had available to him Dr Ellard’s report of 3 November 2003 (to which I will come shortly) and a number of other points made by Dr Ellard in the course of a conference with counsel. Although Dr Ellard’s diagnlsis was slightly different (he considered that Mr Massei had suffered from a major depressive illness with mood congruent psychotic features), their conclusion about the substantial impairment of his capacity to reason at the time of the incident was identical. I will return to Dr Westmore’s final report of 23 May 2005.

21 As I mentioned, Dr Ellard interviewed Mr Massei on 31 October 2003. He noted that Mr Massei spoke good English and it was his impression that he was answering his questions directly and to the best of his ability. He took a full history to which it is not necessary to refer. Dr Ellard said that, having read Dr Westmore’s report (obviously that of 31 October 2002) there was no significant difference between them although he (Dr Ellard) would be more inclined to regard the “voices” that the accused heard as hallucinatory but he thought that this difference was unimportant. Accordingly, Dr Ellard concluded that at the material time Mr Massei was suffering from a major depression with mood congruent psychotic features and his capacity to reason would have been substantially impaired. He considered that Mr Massei’s depression was, when he saw him, in remission but thought that he would require anti-depressant medication for another six months or so when it could be slowly withdrawn although, should the depression return at any time, it would, Dr Ellard thought, be wise and prudent for him to remain on the medication permanently.

22 I have earlier mentioned that, following Dr Ellard’s evidence on 13 May 2005 the Crown sought to withdraw its acceptance of the offender’s plea of guilty to manslaughter in discharge of the indictment and permit a fresh indictment to be presented to enable a trial to be conducted as to whether Mr Massei was not guilty on the ground of mental illness. The evidence of Dr Ellard which, as I apprehended it, had led the Crown to change its position was set out in my earlier judgment. It is convenient to set that evidence out in these reasons –

“Q. Doctor, just one or two questions, if I may? Insofar as your assessment of the prisoner, did you form any opinion as to whether he understood the nature and quality of his act as at the time he killed his wife?
A. Well, I believed that he knew that he was killing her but he was psychotic at the time.

Q. When you say "psychotic", doctor, would you tell us, please what you mean by that, in relation to this man?
A. In ordinary English it means "mad", to be clear. It means that his thinking was grossly deranged, he hallucinated, and he was thinking along ways which he would not normally think along.

Q. But so far as he understood, do you say then that he did in fact understand what he was doing when he was in fact killing her?
A. Yes.

HIS HONOUR: Q. And did he appreciate that it was wrong?
A. I think the best answer, your Honour, is no, because in his delusional context it was the right and correct thing to do for both of them.

KIELY: Q. When you have just answered that to his Honour, as at the time when he was killing his wife - withdrawn knowing something is wrong can be either wrong legally or morally, can't it?
A. Yes. But may I say that there are many moralities. What is morally right in one reality is not in another. A morality is a system of approvals.

HIS HONOUR: Q. Yes, I think in the present sense we are concerned with, though not entirely, but counsel means wrong in the sense that most members of the society would disapprove of what he did and would regard it as reprehensible?
A. I understand that, your Honour. Most members.

Q. Yes, most members?
A. Yes.

Q. Did he appreciate that at the time, do you think, or not?
A. I don't think he was thinking clearly. I mean, if he had sat down and thought it out he may have come to that conclusion, but at that time he was quite acutely psychotic, hallucinating, distressed. His mind was not working logically.

KIELY: Q. As at the time--

HIS HONOUR: Q. I am sorry, there is the distinction made by counsel also. Do you think at the time he realised what he was doing was illegal or unlawful?
A. By M'Naghten?

Q. Of course?
A. I have no idea of that. I have no idea in legal terms, only medical. I doubt he knew it.

Q. It rather follows the things you said, there was no real reflection at all?
A. I think that is a matter for lawyers, not for me.

Q. No, but we were asking what he was thinking or capable of thinking at the time. I suppose we could ask you if he was capable of thinking about Pythagoras’s theorem or perhaps, you know, whether Shakespeare was the author of Shakespeare, but those are not matters either for mathematicians or for a literary historians. I am not being facetious here, but taking the point you make, nevertheless it is a psychological or psychiatric question, whether you think he understood at the time or, as capable of understanding at that precise time, that he was acting contrary to the law?
A. I think the best answer, your Honour, is no; and perhaps I could illustrate it this way? A man being chased by a lion would be profoundly anxious, which is not a psychiatric disorder in that context, but his capacity to give rational answers to ordinary questions would be grossly impaired. I think it is like that.

HIS HONOUR: I see. Thank you.

KIELY: Q. I think that answer was – it was impaired. Rather – is this the situation, his capacity to understand whether it was wrong or not was impaired but not completely absent?
A. In psychiatry and in general medicine we rarely encounter categories. Things tend to be dimensional and that, I think, the answer I gave his Honour was the best answer I can give, that it was grossly impaired.”

23 On 6 June 2005 Dr Ellard provided clarification of his opinion to the Crown who had asked Dr Ellard for an opinion on three questions. The questions and answers are as follows:

(a) Did the accused know what he was doing when he was killing [the deceased] despite the voices?
He did know what he was doing. The voices were the product of cognitive distortions caused by his very severe depression and the overwhelming need to find a solution to the total disaster of losing his wife.
(b) Did he know it was wrong from the standpoint of the ordinary person in killing his wife and taking her to heaven with him.
If firmly interrogated at the time, the answer may have been “yes” but overwhelming emotion will remove the capacity for calm reflection even in the absence of psychosis. Try to get considered answers from a man being chased by a lion.
(c) Was he able to make a judgment with calmness in relation to the moral quality of his act?
No. His judgment was grossly disturbed by the depth of his depression by the consequent breakdown of his ability to see reality clearly – as witnessed the hallucinatory voices were not perceived as unreal. But became becalmed hallucinations.

24 Dr Ellard said that, if compelled to answer the question, he would say that at the material time Mr Massei fell within s 38 of the Mental Health (Criminal Procedure) Act, 1990, that is to say he satisfied the test of mental illness that would have required his acquittal.

25 Dr Ellard disagreed with an aspect of Dr Westmore’s opinion in a report of 23 May 2005 concerning whether Mr Massei had a “partial” delusion. He summarised his opinion that, for the reasons he expressed (quoted above) Mr Massei “became mentally ill at the material time and … what he did was a product of that illness”. Dr Ellard in this respect thought it significant that, when treated appropriately with anti-depressant medication, the psychotic phenomena were removed.

26 In a further report of 28 June 2005 Dr Westmore considered, amongst other things, Dr Ellard’s report to which I have just alluded and commented that, on reflection, he “would agree that it was more likely that the experiences described by Mr Massei were in fact auditory hallucinations of a psychotic quality” and noted that he did not dispute Dr Ellard’s diagnosis that Mr Massei was suffering from a major depressive illness with psychotic symptoms. Indeed, he thought it was probably correct. He also agreed that it could be argued that a mental illness defence was applicable but re-stated his view that he felt at the time he originally examined Mr Massei that the predominant condition which led him to kill Mrs Massei was his depression and that he did “not think on balance that he was delusionally driven to kill his wife, although the content of his hallucinations was of a morbid type and can be linked to his actions”.

27 Also tendered on behalf of Mr Massei was the report of Dr Allnutt, also a very experienced forensic psychiatrist, who conducted a clinical evaluation of Mr Massei on 3 July 2005 and reported the following day. Dr Allnutt had the benefit, amongst other things of the reports of Drs Westmore and Ellard. For present purposes it is sufficient simply to refer to Dr Allnutt’s conclusions -

“While [Mr Massei’s] depression could have contributed to a ‘defect of reason’, I am unable to conclude that it was so severe as to deprive him of the capacity to know the nature and quality of his actions. He was manifesting adequate reasoning capacity in the hours before and after the alleged offence irrespective of ongoing depressive symptoms. While it is possible that hallucinatory experienced can deprive a person of such capacities, in this case his hallucinatory experiences were on the mild side of the spectrum of severity. In addition, the hallucinatory experiences were derived from to a degree from sleep (a normal phenomenon) rather than completely derived from his depression (an illness phenomenon). I am unable to conclude that his ‘disease of the mind’ was severe enough to cause such a serious ‘defect of reason. Thus I believe it unlikely that the court would conclude a mental illness defence.
In my opinion at the time he committed the alleged offence he was experiencing strong suicidal and homicidal urges derived from his depressive disorder, compounded by his mild hallucinatory experiences at a time of night when people are vulnerable to their emotions. I am of the view that his ‘abnormality of mind’ was of a severity that his capacity to fully understand his actions and judge whether they were right or wrong was impaired. It is also likely that he experienced overwhelming emotions and thus his capacity to control his actions was significantly impaired. I believe it likely that the court will accept a defence of substantial impairment in this case.”

Conclusion as to Mr Massei’s mental state

28 General experience shows and the evidence which I have set out above demonstrates that mental incapacity and the nature of mental illness is inherently impossible to define precisely, leaving aside the additional difficulty of relying on ex post facto reporting. (I should observe, however, that there is no suggestion by any of the doctors nor by the Crown that Mr Massei was other than an honest historian). I do not, however, need to concern myself with exactitude of diagnosis. Fundamentally, I am dealing with the problem of criminal culpability in the context of the commission of a serious crime involving the intentional infliction of fatal injury on a human being. Even so, it cannot be doubted that Mr Massei was suffering from a very severe mental illness nor that, but for this illness, it can be regarded as almost certain he would not have committed the offence.

29 It is also the case that there was a sufficient capacity for moral judgment to make Mr Massei’s actions criminally culpable and deserving of punishment. So much is admitted by him in his plea. I have come to the conclusion, however, on a careful review not only of the doctors’ opinions but of the histories given by Mr Massei and the circumstances of the offence, including what I have accepted was a genuine attempt to commit suicide immediately following the asphyxiation of his wife, that the moral culpability involved in the offence was very much towards the bottom of the scale and but slightly removed from that level of incapacity which has long been accepted should lead to acquittal.

Major additional considerations

30 For obvious reasons, the role of general deterrence in the sentence to be imposed in this case must be relatively slight. Having regard to the opinion of the psychiatrists concerning the offender’s present situation and the effectiveness of anti-depressant medication, the punishment which he has already served is, in my view, adequate to deter him from omitting to take the medication which has been prescribed for him and such further treatment as he might need from time to time. At all events, I am satisfied that it is most unlikely that the offender presents any future risk, except perhaps to himself.

31 So far as retribution is concerned, it has been urged on Mr Massei’s behalf that the period of imprisonment of almost three years in a maximum-security prison is sufficient punishment. This strikes me as a very powerful consideration in this case, especially when the effect of his remorse and contrition (which are real and substantial) is taken into account, with the applicable utilitarian discount in the order of 25% (Mr Massei pleaded at the first available opportunity).

32 I note that the position of the Crown was – though I rejected the consequence – that, if Mr Massei had been tried as the Crown sought, he should have been acquitted on the ground of mental illness and the Court’s powers to deal with him otherwise than by adopting a mode which would have resulted in his incarceration could well in this case have involved his immediate release from prison, though subject to the regime prescribed by the Mental Health (Criminal Procedure) Act 1990.

33 Unlike physical injuries with which it is easy for most persons to sympathise since, to a greater or lesser extent, all of us have experienced them, the effect of mental illness is not widely understood in the community and those who suffer from it are far less likely to be regarded with sympathy than those whose physical difficulties are obvious. This is particularly the case with depression, the severe effects of which are frequently masked. When mentally ill persons commit criminal acts, particularly criminal acts involving violence, members of the public find it hard to make just allowance for their mental illness. But the application of a humane and civilised criminal law – one aspect of which is to consider the taking of human life to be a grave wrong – is to take seriously the implications of the substantial incapacity for reasoning and understanding, as well as the pain, of persons affected by mental illness and, within the constraints of the due administration of criminal justice, to deal with these unfortunate persons in a humane way.

34 It must be recognized, at the same time, that issues of public safety necessarily loom large in many such cases, especially when the illness is not susceptible to effective treatment and the offender may well remain a significant risk to other members of the community because of the incapacity to which he or she is subject. It has never been our law, however, that preventive imprisonment justifies a sentence greater than that which reflects the true criminality of the offence and the culpability of the offender deserves.

The offender’s present position

35 On 13 July 2005 I granted bail to Mr Massei upon a number of conditions, principally to report daily to police, to reside at the address of his sister, to attend the Community Mental Health Centre at Hurstville and submit to any management program instituted by that Centre and to take such medication as is prescribed for him.

36 When the proceedings resumed on 12 August 2005 Mr Massei’s sister deposed in an affidavit, which was read without objection, that her brother had lived with her, her husband and two children aged eighteen and fifteen at their home, in compliance with the bail conditions. He had appeared to be in good spirits and was living with them as part of the family and they had not had any problems with him. Mr Massei attended upon a doctor at Allawah and obtained a prescription for his anti-depressant medication, which he has been taking daily as prescribed under the supervision of his sister. Mr Massei had contacted the St George Hospital Community Health Service in accordance with his conditions of bail and made an appointment to see a psychologist in the Intake and Assessment Service at that time. Mr Massei’s sister deposed that her brother has been working regularly at a number of specified employments since his release and had taken some steps to obtain scaffolding work in the construction industry. Other positive signs for continuing mental health are that he has participated in a social soccer competition in which he played before his arrest, he exercises regularly and enjoys other social activities. These are all positive signs strongly indicative of continuing remission of the illness which led to his offence. A report from the St George Hospital and Community Health Service confirmed that Mr Massei had contacted the Service but did not require psychiatric intervention – which, as I understand it, remains on offer should it be necessary – since his medication was available from his local general practitioner and was effective.

Conclusion

37 Having regard to the term of imprisonment already served, the major component – within the constraints of an overall sentence that is otherwise appropriate – remaining in Mr Massei’s case is the level of confidence that can be placed in his continued mental health, in short, the continued demonstration of the rehabilitation that he has already shown. Accordingly, it seems to me that this is a case in which I should exercise the powers of the court under s11 of the Crimes (Sentencing) Procedure Act 1999 and defer sentencing Mr Massei for the purpose of continuing to assess his capacity and prospects for rehabilitation in the community and enabling him to demonstrate that the rehabilitation which has so far taken place will continue into the future. It may be necessary to adjust the conditions of bail to enable an appropriate order to be made and I will invite the parties to make submissions under this head.

38 I note that s11(2) provides that the maximum period for which proceedings may be adjourned under this section is twelve months from the date of the finding of guilt. When precisely in sentencing proceedings a finding of guilt is made is a matter of some uncertainty. It seems to me that, for the purposes of this section, where there has been a plea, the relevant date is the date upon which sentence is or would have been passed: see Maxwell v The Queen (1995 – 1996) 184 CLR 501. Subject to the submissions of the parties as to conditions, I propose to adjourn the proceedings against the offender for twelve months.

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