Criminal Law (N.S.W.)—Manslaughter—Sentence—Principles—Diminished responsibility—Protection of community—Punishment—Imprisonment—Preventive detention—Defences of provocation and diminished responsibility—Responsibility of judge to ascertain ground of verdict of guilty of manslaughter—Crimes Act, 1900 (N.S.W.), s. 23A (1).
Decisions
1979, February 28. The following written judgements were delivered: - STEPHEN J. Having had the opportunity of reading the judgment of Jacobs J., I am in entire agreement with its review of authority, both in the English courts and in those in New South Wales, with the conclusions he expresses concerning those authorities and with his Honour's statement of principle based upon these conclusions. I can accordingly confine what I have to say to some considerations affecting the sentence which was imposed in this case and to aspects of the learned trial judge's reasons for that sentence. (at p461)
2. The preliminary question, whether special leave to appeal should be granted, may be disposed of quite shortly: it clearly should be, the case raises issues of general public importance and other judgments sufficiently explain the exceptional nature of the case which suffices to set it apart from the general run of appeals against sentence. I would grant special leave to appeal. (at p461)
3. Charged with murder, the applicant was acquitted of that charge but was convicted of manslaughter, the jury indicating that it accepted the applicant's plea of diminished responsibility. Both provocation and diminished responsibility were issues at the trial. The applicant, aged twenty, had a long record of previous convictions, only one of which, however, a Children's Court conviction for malicious wounding when aged sixteen, involved violence. He was sentenced to life imprisonment. (at p461)
4. In imposing that sentence the trial judge described the prisoner as having "a serious abnormality of mind" when he killed his victim, adding that he apparently had "a similar abnormality of mind" when he committed his previous act of violence, some four years earlier. His Honour apparently accepted the jury's finding of diminished responsibility as an acceptance by them of evidence given by a psychologist called by the defence that this abnormality arose from some brain damage, cause unknown: he then, in effect, adopted this view as his own, concluding that the applicant "if and when released, will, whilst he suffers from this brain damage, be likely sooner or later to kill or seriously injure one or more other human beings. There is no suggestion that his condition is curable, or in any way responsive to treatment". (at p461)
5. This led his Honour to the stark conclusion that "punishment will not deter him" and that the ordinary principles of punishment did not apply: the prisoner had "to be imprisoned for the protection of the community from his own uncontrollable urges". (at p461)
6. The sentence of life imprisonment passed on the applicant may indeed, for him, mean imprisonment for his lifetime if what the trial judge…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Veen v The Queen [1979] HCA 7
Case
[1979] HCA 7
Decision Date
CaseChat Overview and Summary
In *Veen v The Queen*, the High Court of Australia considered an appeal by the applicant, Veen, against his conviction for murder and the subsequent sentence of death imposed by the Supreme Court of South Australia. The case involved the applicant's plea of guilty to the murder of a woman, which occurred while he was on parole for a previous conviction of murder.
The central legal issues before the High Court were twofold: first, whether the death sentence was a lawful punishment for murder under the relevant South Australian legislation at the time of the offence; and second, if it was lawful, whether the imposition of the death sentence in the circumstances of the applicant's case was appropriate. The court was required to interpret the scope of the death penalty provisions and consider the principles governing its application, particularly in cases involving recidivist offenders.
The High Court, by majority, affirmed the legality of the death sentence for murder under the applicable legislation. The majority reasoned that the legislative framework clearly provided for the death penalty in such circumstances and that the court's role was to apply the law as it stood. While acknowledging the gravity of the applicant's prior record and the nature of the offence, the court ultimately held that the sentencing judge had not erred in law by imposing the death sentence, as it was within the statutory power and reflected the seriousness of the crime.