Regina v David Hugh LAURIE [2005] NSWSC 1361

New South Wales Supreme Court

CITATION : Regina v David Hugh LAURIE [2005] NSWSC 1361

HEARING DATE(S) : 17,18,19,20,21,24,25 October 2005, 9, 16 December 2005

JUDGMENT DATE : 16 December 2005

JURISDICTION : Common Law

JUDGMENT OF : Mathews AJ

DECISION : David Hugh Laurie, for the offence of murdering Jeffry Swann I sentence you to a non-parole period of 15 years to commence on 7 June 2003 and, therefore, to expire on 6 June 2018. The balance of your term of imprisonment is 9 years, to commence on 7 June 2018 and thus to expire on 6 June 2027.

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999

R Engert (1996) 84 ACR 67 CASES CITED : R v Veen (No2) 1988 164 CLR 465

Regina - Crown PARTIES : Accused - David Hugh LAURIE

FILE NUMBER(S) : SC 2004/2275

Crown: P Barnett COUNSEL : Offender: J Fitzgerald

Crown: S C Kavanagh SOLICITORS : Offender: D Smyth

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 70640/03/4

LOWER COURT JUDICIAL OFFICER : Magistrate Morahan

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

MATHEWS AJ

16 December 2005

2004/2275 REGINA v David Hugh LAURIE

SENTENCE

1 HER HONOUR: On 17 October 2005 at Newcastle, David Hugh Laurie was charged by way of indictment for the murder of Jeffrey Swann on 7 June 2003. He pleaded not guilty of murder but guilty of manslaughter. A jury was empanelled and a trial proceeded, limited to the question of whether the appropriate verdict was murder or manslaughter. On 25 October the jury returned a verdict of murder. 2 The background is as follows: In June 2003 both the offender and the deceased were residents of Lowther Lodge, a residential hostel at Brookfield for people with intellectual handicaps. The deceased had been at Lowther Lodge ever since it opened in 1983. The accused had been there for approximately 18 months. The Lodge was under the daily care of Mr Ian Edwards and his wife Christine, who lived in a separate residence on the same property. Representatives of Home Care also attended the lodge on a regular basis to assist the residents in their normal daily routines. 3 On the evening of Friday 6 June, the residents had retired to their respective bedrooms for the night in the normal manner. Nothing seemed untoward. Both the offender and the deceased had bedrooms in the same section of the lodge which they shared with one other person. Sometime in the early hours of the next morning, probably at around 5 o'clock, the offender got up and went to the communal toilet in that section of the building. The deceased, who was already in the toilet, made some comment to the offender which, for no obvious reason, completely enraged him. The offender pushed the deceased against the wall and punched him around the face, and then pushed him down to the ground and started kicking him. The deceased was still able to move, and he ran back to his room. The offender also returned to his own room. 4 Sometime later, however, he got up and went to the deceased's room, pulled him out of bed, and proceeded to kick him, stamp on him, and hit him with a chair. When he realised that the deceased was almost certainly dead, he returned to his own room. 5 A little later Mr Edwards came out of his residence. The offender called him over and said, "You'd better come and check Jeffrey." Mr Edwards went into the deceased's room and found his body surrounded by a large amount of blood. 6 At a later post-mortem examination Dr Kevin Lee noted no less than forty-six signs of recent injury. He concluded that the cause of death was blunt head and neck injury. He made the following observations: "1. The injuries found on the deceased indicate a focused assault on the head, throat and upper chest area. These injuries take the form of multiple blunt force impacts; 2. The degree of head injury was such that a reduction in consciousness would be expected; 3. The degree of damage to the larynx was such that a fatal outcome would be inevitable in the absence of specific therapy." 7 These comments give some indication of the ferocity of the attack on the deceased. 8 The Police were called to Lowther Lodge where they started to interview the offender. He freely admitted to killing the deceased, as he did in a later electronically recorded interview and, indeed, as he has done ever since. When asked why he did it, he could only say that he was so angry and in such a rage that he just had to kill the deceased. He was unable to give any coherent account of what had caused this rage except that it was something that the deceased had said to him in the toilet. From the sound of it, it was a quite innocuous comment about a neutral subject. 9 At one point he was asked, "Were you thinking clearly" and he responded, "Yeah, thinking clearly. I knew exactly what I was doing." A little later he was asked whether he knew that what he was doing was wrong, he responded, "Yeah I did know. Actually I didn't think about it, I just did it. I just really felt the anger." Later again he was asked whether at the time of assaulting the deceased he realised that what he was doing was wrong, and this time he said, "No, I didn't actually, no." 10 The sole issue at the trial was whether the offender's liability for murder should be reduced to manslaughter by reason of s23A of the Crimes Act 1900. Under this section a person who would otherwise be guilty of murder is not to be convicted of murder if at the time of the offence the person's capacity to understand events, or to judge whether his actions were right or wrong, or to control himself or herself, was 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 reduced to manslaughter. 11 Before discussing the issues which were raised under this section, it is relevant to say something about the offender's background. 12 The offender was born on 11 November 1962. He is mildly to moderately mentally retarded, a condition he has had since birth. His mother on all account suffers from schizophrenia. She and the offender's father separated when he was quite young, and she generally cared for him when he was not in institutions. His father died earlier in 2003. By reason of his disabilities the offender is incapable of independent living. He has no significant previous convictions. 13 Starting at the age of 18 years the offender had a series of psychiatric admissions. Many of them related to alcohol abuse and to withdrawal from severe alcohol abuse. A report in the year 2000 raised the possibility that he was suffering from schizophrenia. Doctor Jeremy O'Dea, a psychiatrist called by the Crown at the trial, noted that the offender's developmental disabilities included problems with both intellectual and social functioning. He appeared to have a long-standing history of at least intermittent problems controlling his anger and impulsive behaviour. Given his family history, the doctor commented that he was at increased risk of developing a psychotic illness such as schizophrenia, but the symptoms noted in the psychiatric reports he had seen were not, he said, of a typical schizophrenic syndrome. He considered it probable that at the time of the offence the offender's ability to control himself was substantially impaired. This impairment arose from his mental retardation which was in turn caused by a defect in the structure or function of his brain, and was thus an underlying condition under s23A.