Regina v Samuel Noel Lever

[2001] NSWSC 1131

CITATION:	Regina v Samuel Noel LEVER [2001] NSWSC 1131
FILE NUMBER(S):	SC 70040/97
HEARING DATE(S):	22/10/01, 23/10/01, 24/10/01, 25/10/01, 26/10/01, 29/10/01, 30/10/01, 7/12/01
JUDGMENT DATE:	13 December 2001
PARTIES :	Regina Samuel Noel LEVER
JUDGMENT OF:	Bell J at 1

COUNSEL :	Dan Howard - Crown Stephen Odgers SC - Accused
SOLICITORS:	S E O'Connor Aboriginal Legal Service
CATCHWORDS:	Sentence
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Blacklidge (unreported) NSWCCA, 12 December 1995 R v Edwards (1996) 90 A Crim R 510 Regina v Engert (1995) 84 A Crim R 67 Regina v Fernando (1992) 65 A Crim R 98 Regina v Letteri (unreported) NSWCCA, 18 March 1992 Regina v Previtera (1997) 94 A Crim R 76 Veen (no. 2) v The Queen (1987/88) 164 CLR 465
DECISION:	Sentence of ten years imprisonment to date from 11 March 1999; Non-parole period of six years; First date eligible for release on parole is 10 March 2005

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

70040/97
BELL J
13 December 2001

REGINA v Samuel Noel LEVER

Judgment

: On 22 October 2001 the offender was arraigned before me on an indictment charging him that on 15 November 1996 at Fingal he did murder Linda Jo Lever. He pleaded not guilty to that charge and a jury was duly empanelled. On 30 October 2001 the jury returned a verdict of not guilty of murder but guilty of manslaughter.

2 The sentence proceedings were stood over to 7 December 2001. On that date I received the reports of a number of psychiatrists and a psychologist, attached to the Corrections Health Service. The authors of those reports were cross-examined on them. I will return to this material in due course.

3 The deceased and the offender were married and lived in Fingal. The offender was aged thirty-six years at the date of the offence. He is Aboriginal.

4 The deceased died as the result of a sustained and brutal beating.

5 Dr Duflou, the pathologist who conducted the post-mortem examination, said that it had been very difficult to estimate the number of blows struck to the deceased since there were a large number of overlapping injuries. The possibility existed that one injury may have been caused by more than one blow, alternatively, there may have been blows to the body without causing observable injury. Dr Duflou went on to say “it was my estimate that there were a number of hundred blows to the surface of the body (T 88)”.

6 The blows were administered with at least two different types of weapon apart from a number of injuries caused by blunt force such as may have been produced by fists, feet, or for that matter, any other broad, non-sharp edged object. There were a number of parallel areas of bruising or abrasion which, in Dr Duflou’s opinion, were consistent with the use of a flexible object such as the rubber strap which police located at the offender’s home. A third group of injuries were consistent with blows by an object such as a baton or stick of dimensions approximately fifty by thirteen millimetres. A baton of this description was also located at the home by the police.

7 The deceased suffered a number of broken ribs. In all, there were eleven recent rib fractures. The severity of the beating was such that lungs were bruised and there was bruising to the membrane which attaches the bowel to other structures in the abdomen. There was a tear to the liver. In Dr Duflou’s opinion, it would have taken a considerable amount of force to produce these injuries.

8 No single injury would, by itself, have produced death. On dissection of the skin Dr Duflou observed areas where the fat had become liquefied. This was the result of multiple impacts on the surface of the body. The mechanism of death was that the multiple injuries caused blood loss, shock and possible mobilisation of the fat into the blood stream itself.

9 This was an horrific beating.

10 The proceedings before me were a retrial. On 30 November 1999 the offender was found guilty by the verdict of a jury, at a trial before Greg James J, of the murder of Linda Jo Lever.

11 At the trial before Greg James J, and at the trial before me, there was no issue but that the offender had inflicted this beating upon his wife. The central issue on each occasion was the partial defence of diminished responsibility provided by s 23A of the Crimes Act 1900 (as it then stood). At the first trial Dr Westmore gave evidence in support of that defence. The Crown called Dr Nielssen who did not support the defence. Subsequently, and prior to the imposition of sentence, Dr Nielssen became aware of matters concerning the offender’s mental state in the months leading up to the killing, which led him to change his opinion. At the time of the sentence hearing, there was a degree of unanimity in the psychiatric evidence before his Honour.

12 His Honour sentenced the offender to a term of thirteen years imprisonment. A non-parole period of nine years was specified. This sentence, which reflected a measure of leniency taking into account the evidence as to the offender’s mental state, was nonetheless a sentence imposed in respect of the offender’s conviction for murder. I am called upon to sentence the offender for the lesser offence of manslaughter.

13 The trial before me was conducted solely upon the issue of the offender’s mental state at the time of the killing. He raised the partial defence of diminished responsibility. Two of the psychiatrists who gave evidence at the trial, Dr Westmore and Dr Wong both supported the availability of that partial defence, but went further and expressed the opinion that the offender had the defence of mental illness available to him. In the event, the defence of mental illness was not made out.

14 I approach the matter of sentence upon the basis that the offender caused the death of the deceased by his deliberate act, which was accompanied by the requisite intent for murder, but that his mental responsibility for that act was substantially impaired by an abnormality of mind. The abnormality of mind was that the offender was suffering from a delusional disorder such that he entertained fixed beliefs, not based in reality, including that his family were being harrassed by unknown intruders, that his wife was flagrantly unfaithful to him and that she was, in some way, in league with the harassers.

15 I am not satisfied beyond reasonable doubt that, at the time of administering this beating to the deceased, it was the offender’s intention thereby to kill her. I deal with him on the basis that in repeatedly beating her in the way that he did it was his intention to inflict grievous bodily harm upon her.

16 A victim impact statement prepared by Edwina and Rodney Edmed, the parents of the deceased, was received in accordance with the provisions of s 28 of the Crimes (Sentencing Procedure) Act 1999. In that statement they express their profound grief at the loss of their daughter. They observe that no parent expects to outlive their child. Linda Jo Lever was thirty-five when she died. She was part of a large family who live in the Tweed Heads community. As a young woman she was a group leader with the Youth Group of the Aboriginal Evangelical Fellowship of Australia. Religion played an important role in her life. She was a loving mother to her six children, all of whom were the product of her union with the offender. Mr and Mrs Edmed express their pain and anguish, both in that they will not see their daughter again and in that she has lost the opportunity to see her own children grow up. Poignantly, the statement is signed “Mum and Dad”. The Court expresses its sympathy to the Edmed family in their loss.

17 In receiving the victim impact statement I bear in mind the observations of Hunt CJ at CL in Regina v Previtera (1997) 94 A Crim R 76 at 88-87. I approach the reception of the statement with those observations in mind.

18 The deceased and the offender commenced living together in 1978. In the period between 1980 and 1987 or thereabouts the relationship was characterised by the offender dealing violently with the deceased from time to time.

19 A report prepared by Brian Copeland, Probation and Parole Officer, dated 3 February 2000 (which was prepared in connection with the proceedings before Greg James J) was tendered on the offender’s behalf in the proceedings before me. That report sets out the offender’s prior contact with the service, including the fact that he had been placed on a three year supervised recognizance in June 1979 following his conviction before the Sydney District Court for the offence of breaking, entering and stealing. In July 1980 the offender was arrested in Queensland on drug charges. In respect of these matters he was fined. In November 1981 he was convicted before the Coolangatta Magistrate’s Court on a charge of assault occasioning actual bodily harm. He was fined on that occasion. The victim of that offence was the deceased.

20 Mr Copeland refers to the contents of an earlier pre-sentence report, prepared in December 1988 when the offender was facing sentence on a charge of driving with the prescribed concentration of alcohol in his blood. In that report it was said that the offender had settled down following a period of alcohol and drug abuse and domestic upheaval. As at the date of the preparation of that report the offender had become involved in church activities and he appeared to be “more responsible and mature in his attitude to his family”.

21 In the period between December 1988 and late 1995 the offender appears to have led a settled and productive life. There is no evidence that he engaged in further acts of violence towards his wife during these years.

22 Andrew Chalk, solicitor, first met the offender in early 1989. Mr Chalk was employed by the Aboriginal Legal Service. He was working on an Aboriginal land claim in the Fingal area. By this time the offender was the co-ordinator of the Tweed Local Aboriginal Land Council. In this role the offender worked with Mr Chalk. The two had a good deal of contact. On occasions Mr Chalk stayed with the Lever family. It was apparent from Mr Chalk’s evidence given at the trial that, up until 1996, his experience of the offender was of a responsible man who conducted the affairs of the Local Land Council with professionalism. Such a view receives ample support from a number of references tendered on the offender’s behalf at the sentence hearing.

23 Michael Wright, solicitor, was retained by the Tweed-Byron Local Aboriginal Land Council in the early 1990s in connection with proceedings in the Land and Environment Court. In a statement dated 20 December 1999 Mr Wright comments most favourably on the offender’s role in representing the interests of the Local Land Council and in liaising effectively with the lawyers retained to advance the land claim. Mr Wright, like Mr Chalk, had come to know the offender on a personal level. He, too, had visited the family home. He stated that the offender appeared to be a devoted family man and a loving and caring father to his children. Mr Wright viewed the offender as a person of great personal strength who was considered, courteous and purposeful in his dealings with others. In Mr Wright’s experience the offender did not drink alcohol.

24 Senator Aden Ridgeway provided a reference, dated 22 February 2000, in support of the offender. He described the offender as a leader within his community who had fought for the recognition and fair treatment of the local Tweed Heads indigenous community. When the Senator was Executive Director of the NSW Aboriginal Land Council he had frequent occasion to speak with the offender. He was impressed with the way the offender conducted negotiations on behalf of the Aboriginal community. In Senator Ridgeway’s opinion the offender is “a respected community leader, a loving father and a decent human being”.

25 The offender grew up in the Fingal area. He was one of six children. His father was a violent, heavy drinker. He favoured the offender’s brother and constantly found fault with, and punished, the offender. In the pre-sentence report Mr Copeland gives an account that the offender was the victim of incidents of almost sadistic violence inflicted on him by his father.

26 The offender met the deceased when the two were in primary school. Their first child was born in September 1981. In the early years of their relationship the offender drank alcohol to excess. The couple had eight children. They had more than their share of sadness. Their second daughter drowned when aged three and their second son died of an illness in infancy.

27 The offender attended state schools in the Tweed Heads area. He was fifteen when he left school at the end of Year Nine. His early working life centred on building sites in Sydney and on the Gold Coast. After his religious conversion the offender worked as the co-ordinator of the Local Aboriginal Land Council. The offender achieved a good deal on behalf of the Local Land Council and established a reputation for patient, common-sense negotiation over these years. For five years he also served as the Chairman of the local Aboriginal Housing Co-operative.

28 As at February 2000 when Mr Copeland prepared his report he observed:

“The personality of the offender seems to belie the crime of which he is guilty. His reputation as a negotiator was based on his patience, courtesy and reason and these are the most obvious elements in his makeup. In prison, his behaviour is excellent and he is now acting as the Aboriginal Prison Delegate in Silverwater. He has exercised a great measure of control of his emotions and behaviour, learning in his youth to enure himself to pain and in adult life making significant changes in his behaviour and attitude. However, his capacity to control himself was exceeded in the conflict within his marital relationship. On several occasions, Mr Lever resorted to violence which had been a significant element in his early role modelling. He realises now that he should have left the marriage but wanted to hold the family together. His children visit him and appear to hold him in sympathetic affection despite the nature of the offence.”

29 Captain Carter, Anglican Chaplain, Corrective Services, in a reference dated 6 December 2001, says that he has known the offender over the past two years while the latter has been at the MRRC. He reports that the officers at the Silverwater Complex speak highly of the offender’s behaviour. On many occasions he has assisted staff in diffusing potentially dangerous situations involving other inmates. In Captain Carter’s opinion the offender is showing remorse for his offence. Mr Copeland is of a similar opinion.

30 An affidavit sworn by Bob Carroll describes the work the offender has done as the Aboriginal delegate at the MRRC. The offender was appointed to that position within a month of his arrival at that Centre. In this role he has contact with all new Aboriginal prisoners received at the MRRC. Mr Carroll says that the offender is a hard working and helpful Aboriginal delegate. He is particularly respected for his work with young offenders and older inmates. Mr Carroll notes that the offender stands out from other delegates for his courteous behaviour towards Corrective Services officers, his willingness to listen to the concerns of inmates and his consistent and reliable handling of new inmates.

31 A Statutory Declaration affirmed by Tanya Lever, the offender’s younger sister, provides a detailed account of the offender’s six children and their response to his incarceration. The offender stayed with her at her home in Ashfield during the period when he was at liberty on bail prior to the first trial. During this time he maintained a close relationship with the children who were in the care of their grandmother at Marrickville. The children range in age from five to nineteen years. I take into account Ms Lever’s evidence, supported as it is by other material tendered at the sentence hearing, namely that the offender is a loving parent.

32 The Crown confirms that the offender indicated, prior to the trial before me, that the sole issue to be ventilated was that of diminished responsibility. In this context he offered to plead guilty to manslaughter. That plea was not accepted by the Crown. In these circumstances I propose to give the offender credit for his willingness to plead guilty to the offence for which he was convicted by the jury.

33 Mr Odgers SC, who apeared for the offender, accepted that the principles enunciated by Wood J (as he then was) in Regina v Fernando (1992) 65 A Crim R 98 have limited application in this case. He submits that the offender’s unfortunate childhood, particularly, the history of serious violence to which he was subject is a relevant consideration on sentence. I accept that is so quite apart from the principles with which Wood J was concerned in Fernando. I am also invited to consider that in a prison environment Aboriginal people find themselves quite often in the position of being foreigners in their own country. I am not persuaded having regard to the offender’s background, the evidence of Mr Chalk, and the contents of the references, that this is a consideration which is apt in the present case.

34 Andrew Chalk gave evidence that in January 1996 the offender inexplicably failed to attend an important meeting in Sydney relating to the Fingal land claim. He gave no notice of his inability to attend the meeting. In the light of Mr Chalk’s knowledge of the offender’s commitment to the land claim he considered this to be extraordinary behaviour. A further meeting was planned for 6 March 1996 in Sydney. Again, the offender failed to attend despite arrangements having been made for him to do so. By that stage Mr Chalk had become extremely concerned about the offender. He telephoned him at home to discuss the matter. After some hesitation the offender told him during the course of this telephone discussion:

“I don’t really know what’s going on. I got people coming around the house of a night. They hang around the house and throw things on the roof and tap the walls. They are here almost every night and I can’t go outside. I’ve got to sit up all night and keep an eye on the house.”

35 The offender told Mr Chalk that the harassment was affecting the whole family. Both he and Linda were sitting up all of the night. The two of them would get some sleep during the day when the children were at school. Mr Chalk queried whether these strange happenings had anything to do with the land claims. The offender said that they did not.

36 Over the following months Mr Chalk had many conversations with the offender about the harrassment. The offender’s conversations with Mr Chalk during 1996 appear to have exhibited an increasingly bizarre quality. He gave an account of people coming to the house with guns. He would conclude his conversations with Mr Chalk by saying “it will be alright, just pray for us”.

37 In June 1996 an important meeting was arranged in Sydney with the Minister. Again, with no notice, the offender failed to attend.

38 There were periods in 1996 when the offender would convey to Mr Chalk that he and the family were experiencing harassment on a nightly basis. On other occasions he expressed the opinion that things were improving.

39 On 28 October 1996 Mr Chalk attended a meeting of the Local Land Council in Byron Bay. The offender appeared relaxed and ran the meeting efficiently.

40 It was Mr Chalk’s opinion that there was some foundation in reality for the harassment which the offender described. However, he had come to consider that it was not of the degree described by the offender. Mr Chalk did not doubt the genuineness of the offender’s belief in the harassment. In Mr Chalk’s view the offender appeared genuinely confused by what he believed to be happening to his family. I accept all that Mr Chalk had to say.

41 Dr Westmore, Psychiatrist, prepared a number of reports which were tendered at the sentence hearing. Dr Westmore gave evidence at the trial. He interviewed the offender in October and November 1998. In total he interviewed the offender on four occasions. Initially, Dr Westmore considered that the offender was depressed and that he had some abnormal thought processes. He considered that those thought processes may or may not have had a psychotic quality. Subsequently, Dr Westmore moved to a view that the offender was suffering from a psychotic condition, as distinct from a primary mood disturbance with psychotic features. Dr Westmore remained of the view that the offender also suffered from a major depressive illness. In this regard he noted that the offender had a significant disturbance of his biological functions. These are the hallmarks of a major depression.

42 In coming to the view that the offender had a paranoid disorder, as distinct from simply a depressive illness, Dr Westmore took into account the history given by the offender both in the course of his interviews with him and as set out in the report of Dr Wong. This included the offender’s assertions that his wife would tell him that there were men outside the house; that the men had obtained the keys to the property; and that he would sit up late at night watching for intruders. Among the many concerns the offender expressed was a belief that his wife was having inappropriate sexual contact with a wide variety of people. He was concerned that she had been putting substances in his coffee. He believed that this was being done to make him go to sleep at night so that she might go out and have sexual relations with other people.

43 There was, in Dr Westmore’s view, a bizarre quality to the thoughts which the offender reported which suggested more likely than not they had a psychotic quality to them. Dr Westmore noted that the offender presented as a paranoid, guarded, suspicious man.

44 Dr Westmore stated:

“I believe he had what I now believe to be delusional beliefs regarding his wife and her behaviour and that led him to act towards her as he did (T 123)”.

45 Dr Wong was of the opinion that the offender was suffering from a delusional disorder. His diagnosis was conformable with that of Dr Westmore.

46 In Dr Nielssen’s opinion the offender’s mental responsibility for his actions was impaired principally by reason of the impact of the delusional beliefs on his understanding. He was also of the opinion that the delusional beliefs would have affected the offender’s capacity for self-control. In this regard Dr Nielssen took into account the information that suggested that the offender had been in a distressed and very tired state at the time of the killing.

47 In the Crown’s submission there was a considerable body of evidence to establish that the deceased suffered chronic physical abuse at the hands of the offender at various times during the course of their marriage. The Crown relied on that material to show the true context of the offender’s behaviour towards the deceased and to provide a background against which to assess his claim to be a person of good character.

48 It is appropriate, in the light of this submission, to turn to the evidence tendered at the sentence hearing concerning a further episode of violence meted out by the offender to the deceased in October 1995. On that occasion the deceased called to her parents home complaining that the offender had beaten her. She had a large bruise under her lip and bruises all over her body. Her parents arranged for her to fly to Cairns to stay with her sister. The deceased complained to her parents that the offender had forced her to have sexual relations with other men and that he had videotaped this activity. She complained that she had been forced to say that her mother was having an affair with the offender and that her father had sexually molested her when she was a child.

49 In a report dated 15 October 2001, which was tendered on a voir dire hearing during the trial, Dr Wong commented on the October 1995 violence. It is apparent that Dr Wong considered this episode to be consistent with the onset of a psychiatric disorder about one year prior to the killing. He said this:

“He had been extremely violent and cruel towards the deceased since shortly after the commencement of their relationship up to 1989. The behaviour then abated or alleviated. In any case, there is no evidence of continued severe violence until October 1995 when he manifested exceptional unusual and depraving behaviours not seen even in his most violent days. At the same time, he made allegations about the deceased’s infidelity which were reminiscent of those he made after the alleged killing.”

50 I accept Dr Wong’s opinion in this respect. I consider the evidence of the incident in October 1995 to be consistent with the onset of the offender’s psychiatric difficulties. I do not see it as forming part of the same pattern of abusive behaviour which characterised the early years of the offender’s relationship with the deceased.

51 In dealing with the offender’s claim to be of good character I approach the matter on the basis that he grew up in a household characterised by violence. He had limited education and, in his early adult years, he was prone to minor criminal offending and to alcohol abuse. Associated with this lifestyle the offender exhibited persistent violent behaviour towards his partner. Around 1989 I accept that he underwent a marked change in behaviour associated with his religious conversion. Thereafter, until late 1995 and the onset of some psychiatric disorder, I consider that the offender demonstrated himself to be a useful and responsible member of the community. This is not a case in which it would be fair to consider that the offender’s outward appearance of religious faith, his patient negotiating skills and general concern for his community were at odds with his private life.

52 I turn now to a further submission advanced by the Crown, namely that the offender’s mental condition is such that he represents a danger to the community justifying consideration of the protection of the community being to the fore in the exercise of the sentencing discretion; Veen (No. 2) v The Queen (1987/88) 164 CLR 465.

53 Dr Wong prepared a report, dated 17 October 2001, addressing the issue of the offender’s future dangerousness. In that report Dr Wong expresses the opinion that there is no evidence to suggest that the delusional disorder (of which the offender was suffering at the time of the killing) has abated. It is a difficult disorder to treat. People suffering from it are able to function perfectly normally outside the realm of their delusions. This feature makes it difficult to recognise the presence of psychiatric abnormalities in the individual. In the course of his oral evidence Dr Wong maintained his view that the offender is still suffering from delusional disorder. In this respect he was at odds with the opinions expressed both by Dr Nielssen and Dr Davies.

54 I note that Dr Wong was also at odds with the opinion expressed by Mr Dibona, psychologist. Mr Dibona was not inclined to the view that any of the history given by the offender in their frequent counselling sessions together was based on delusional beliefs. I reject Mr Dibona’s opinion in this respect. The significance of Mr Dibona’s report is that it shows that the offender has, in recent times, maintained his account of the deceased’s flagrant sexual infidelity, together with his belief that on the morning of her death she told him that people were waiting in the backyard to kill him and that he confronted this group who then scattered into the bushes. There is more in similar vein in Mr Dibona’s report. In Dr Wong’s opinion the fact that the offender continues to believe in the delusions (which characterised his thinking at the time of the killing) is evidence that he continues to suffer from delusional disorder. By contrast, Dr Davies considered that the offender was not currently suffering any form of mental illness, but that he retained memories of the content of his thinking at the time of the killing. Dr Nielssen was somewhat closer to Dr Davies than Dr Wong in this respect.

55 Dr Davies interviewed the offender on 7 November and 4 December 2001. On review the offender presented in a more direct and co-operative manner and did not demonstrate any gross psychiatric signs. This was in contrast to his presentation in December 1999 and January 2000. Dr Davies, in a report dated 4 December 2001, observed:

“When I first saw Mr Lever he continued to demonstrate low grade symptoms suggestive of psychosis but in the last eighteen months these have improved and he does not have any current symptoms of mental illness.
From the point of view of risk on return to the community I note that there were no problems during the two years that Mr Lever was on bail and as his recent violent episodes were contained within an intimate relationship I do not regard his release as likely to pose a significant threat to the community.”

56 In oral evidence Dr Davies stressed the usefulness in this case of the offender being subject to a lengthy period of supervision. In evidence Dr Davies was asked to express an opinion about whether the offender’s delusional disorder might become manifest again in the context of a future relationship. He responded in these terms:

“It depends what you define as ‘significant’. What it means is that you should then put in place strategies to monitor his psychiatric condition long-term. But the problem with risks in this sense, in a risk management situation is that even though he had two or three times the community risk of recurrence, the overall level of risk still remains relatively small. So it depends actually what you mean by ‘significant’.”

57 Dr Nielssen, in an updated report addressed to the issue of future dangerousness, noted:

“Mr Lever’s previous violence has largely been confined to his marriage, which would not predict a risk to the community at large, but may lead to domestic violence in another relationship.”

58 Elsewhere in his report Dr Nielssen observed:

“The history of steady employment in the years before the offence, and the support he has received from his family suggests that he will be able to make a reasonable adjustment to life in the community after his release”.

59 In the course of his oral evidence Dr Wong was asked what features of the delusional disorder might be expected to be exhibited in the offender’s behaviour in the future. He said this:

“Now when Linda was still alive, and she was one of the main objects of the delusional belief, and Mr Lever acted accordingly, in response to his delusions, when she was no longer around, obviously the object of his delusions are no longer there and we would not expect the person to respond to his delusions in any tangible way and the characteristic of this disorder is that the person is able to function quite normally outside of the domains of the influence of his delusions. Well, in that case, he would be functioning quite normally.”

60 Dr Wong went on to express the opinion that it was possible that a person suffering from delusional disorder may come to have the scope of the delusions stretch so as to encompass more people within the delusional belief system. He was not able to express the likelihood of this occuring in the present case. Ultimately, he expressed the opinion there was a significant possibility of the offender’s delusional belief system spreading.

61 There is some divergence in the views of the psychiatrists who have interviewed the offender over the years since the commission of the subject offence. Neither Dr Davies or Dr Nielssen identifies the offender as posing a significant risk to the community at large upon his ultimate release. The risk, as Dr Wong perceives it, is that the offender may in the future come to include persons, other than the deceased, within the framework of his delusional belief system.

62 Against these differences of expert opinion, I have regard to the fact that the offender was at liberty on bail pending the first trial for a period in excess of two years. During this time he is not said to have exhibited violent behaviour. The offence was committed some five years ago and it has not been suggested that, to-date, the offender has developed delusional beliefs which have come to encompass other persons.

63 I approach the matter upon the basis that I am not persuaded that the offender poses a significant risk to the community by reason of his mental condition. This is not to say that the Parole Board will not need to give careful consideration to the question of his dangerousness at the date when he is eligible for consideration of release on parole.

64 This is an objectively serious case of manslaughter. The sustained and brutal nature of the assault upon the deceased requires that it be so viewed. Mr Odgers submitted that the evidence of the offender’s mental state was such as to make it a somewhat sterile exercise to seek to isolate the objective gravity of the offence. In his submission the offender beat his wife to death because his thinking was disordered and his capacity to control his behaviour was substantially impaired. That is so. Were it not the case he would be guilty of murder. This is not to say that he bears no responsibility for his acts.

65 I note the observations of Gleeson CJ in Regina v Blacklidge (unreported) NSWCCA, 30 November 1995, (in a judgment with which Grove and Ireland JJ agreed):

“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 (R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402).
When the basis of a finding of manslaughter is diminished responsibility, pursuant to s 23A of the Crimes Act, 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 (R v Low (1991) 57 A Crim R 8).

66 The Crown invites me to consider that while the offender’s impairment was substantial it was not such as to cause him to have lost his capacity for control entirely. While he may have been deluded in believing that his wife was unfaithful to him (and, in some way, in league with those who were harassing him) his actions in beating her were deliberate and carried with them a punitive quality far in excess of any appropriate reaction assuming those beliefs to have been based in reality. His actions were, in the Crown’s submission, excessive and cruel.

67 The Crown also submits that I would assess the extent of the offender’s impairment by looking to circumstances such as that shortly after the killing he behaved in an appropriate fashion; attempting resuscitation and arranging for an ambulance to be summonsed. He was less than candid in his interview with the police such that I would infer he knew the wrongness of his conduct and sought to minimise it. He apologised to his son for what he had done to his mother.

68 I consider that there is force to these submissions. Equally, I bear in mind Dr Davies evidence given at the sentence hearing:

“You’re assuming that the sole manifestation of his illness is his false belief. Now in fact if you have a psychotic illness as well as those false beliefs, there are a number of distortions of thinking, of feeling and of cognition. So you’re looking at a total illness state. You are not looking at false beliefs in a normal person, you’re looking at false beliefs in somebody who is suffering from illness and who is an abnormal person and one of the things that has happened – when I first saw him, he was clearly manifesting other signs of illness. He’s now got better from those (T 10).”

69 Dr Nielssen, who agreed with the diagnosis of delusional disorder, gave evidence at the trial that there was some effect on the offender’s reasoning capacity but, in his view, not to the degree required to not know that what he was doing was wrong. Mr Odgers took this issue up with Dr Nielssen at the sentence hearing:

“Q. Would you therefore accept that at the time that he assaulted his wife, and I’m talking about the one that led to her death, that his disorder would have been a factor in that assault in terms of the existence of the delusional beliefs, the existence of some state of depression and some impaired capacity to exercise self-control?
A. Yes, that’s the mental illness component and then, of course, it’s collided with pre-existing personality traits and the circumstances of their relationship (T 30).”

70 The offender did not give evidence either at the trial or at the sentence hearing. He did not seek to avail himself of the defence of mental illness. It was his case that he understood that his conduct was wrongful. On his behalf attention was drawn to the evidence that shortly before the fatal assault he had packed his bags intending to leave home because he feared that he might assault his wife.

71 In assessing the appropriate penalty for this offence I bear in mind that the offender took the life of his wife by a series of deliberate acts carried out over a period of time with the intention thereby of doing grievous bodily harm to her. He was very angry with her at the time.

72 I am mindful of the principles to be found in Regina v Letteri (unreported) NSWCCA, 18 March 1992 and Regina v Engert (1995) 84 A Crim R 67 which would suggest that, in the light of the offender’s mental condition at the time of the killing, considerations of deterrence and of retribution have a limited role in my task.

73 The evidence of Mr Chalk painted a picture of the offender as a man whose mental state was deteriorating throughout 1996. His delusions, and the confusion which they created in his mind, the tiredness associated with months of broken sleep and anxiety are all matters which I take into account in considering the degree of impairment of his mental responsibility which in my view was of a high order.

74 In the light of the psychiatric evidence and, particularly, the oral evidence of Dr Davies, I consider that this is a case in which special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act exist such as to justify a departure from the statutory proportion as between the sentence and the length of the non-parole period. The offender has been in custody for two years, nine months and two days as a remand prisoner. The whole of that custody has been referable to this offence. In those circumstances, in accordance with the provisions of s 47 of the Crimes (Sentencing Procedure) Act I propose to direct that the sentence which I impose be taken to have commenced on 11 March 1999.

ORDER
Samuel Noel Lever I sentence you to a term of ten years imprisonment to date from 11 March 1999. I specify a non-parole period of six years. The first date upon which you will be eligible for release on parole is 10 March 2005.

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Last Modified: 12/17/2001