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. 14 This view was shared by the two psychiatrists called in the defence case, Dr Bruce Westmore and Dr Olav Nielssen. They also considered that the offender was probably suffering from a form of schizophrenia. The possibility was also raised that the offender's capacity to judge whether his actions were right or wrong might have been substantially impaired so as to bring him within another limb of s23A, but in the light of the fact that all three psychiatrists agreed that there was a substantial impairment in his capacity to control himself, it was not necessary to explore this issue further. 15 Accordingly, the evidence at the trial was all one way as to the requirements of paragraph (1)(a) of s23A. It was common ground that the ability of the offender to control himself was substantially impaired within the meaning of that provision. The only real issue in contention was whether the impairment was "so substantial as to warrant liability for murder being reduced to manslaughter" as required by paragraph (1)(b). 16 This is quintessentially a jury issue involving the application of community standards. In reaching a verdict of murder the jury clearly answered this question in the negative. 17 It is likely, as both the Crown prosecutor and Mr Fitzgerald suggested, that in reaching its finding the jury was influenced by the extreme brutality of the killing, and by the fact that the attack on the deceased was recommenced after a gap in time when he had returned to his room and gone back to bed. Any imagined slight on the deceased's part was at that stage well in the past. Yet the offender, as he later told the police, felt that he "had to finish it." 18 There are a number of matters which I am obliged to take into account under s21 A of the Crimes (Sentencing Procedure) Act 1999. I shall deal very briefly with each of them before turning to the most significant issue in this case, namely the offender's disability. Subs (2) of s21A lists a number of aggravating factors to be taken into account if relevant on sentencing. The Crown prosecutor suggested that two factors were potentially relevant in this case: Paragraph (f), that the offence involved gratuitous cruelty; and paragraph (l), that the victim was vulnerable because he had a disability. However, the Crown himself fairly conceded that in the light of the offender's disability it would be difficult to categorize his actions as involving gratuitous cruelty, and I agree with this. 19 Similarly, in my view, paragraph (l) is intended to apply when an offender takes advantage of another person's vulnerability. In this case the offender suffered precisely the same vulnerability as the victim. There was, as Mr Fitzgerald submitted, an essentially level playing field. This being the case, I do not propose to take account of paragraph (l). 20 As to potentially mitigating features, the Crown prosecutor has very fairly pointed to s22A of the Act, which enables the courts to impose a lesser penalty than it would otherwise have done having regard to pretrial disclosures made by the defence for the purpose of the trial. In this case, the offender's plea of guilty to manslaughter would bring him within this provision. 21 Mr Fitzgerald pointed to a number of mitigating factors under subs (3) of s21A, which he submitted are relevant in this case. These include, under paragraph (3)(b), that the offence was not part of a planned or organised criminal activity; under 3 (e) and (f), that the offender has no record (or significant record) of previous convictions, and that he was a person of good character. I accept the relevance of each of these factors. The killing of Mr Swann was clearly an unpremeditated action. Tragically Mr Swann just happened to be in the vicinity when the offender was overtaken by a bout of uncontrollable anger. The offender had no prior convictions, and is thus taken to be a person of prior good character. 22 Mr Fitzgerald also sought to rely on paragraph (3)(j), that the offender was not fully aware of the consequences of his actions because of his disability. The Crown questioned the relevance of this factor in this case, pointing to the offender's answers in the police interviews which indicated both a full awareness and intention that his action would lead to the death of Mr Swann. I do not think it necessary to debate this issue here. I do not believe that the offender fully understood the consequences of his actions, but the offender's disability and the effects it had on his culpability and will have on his future is the major factor in the sentencing of this offender, so this matter will in any event be taken into account. 23 I turn now to discuss that issue. All three psychiatrists who gave evidence at the trial agreed that the killing of Mr Swann was the direct result of the offender's inability to control himself, which in turn was caused by his disability. Without his disability the offender would not have been at Lowther Lodge in the first place, and more importantly this tragic and meaningless killing would never have taken place. 24 The offender was taking antipsychotic and antidepressant drugs at the time of the killing. His drug regime had been altered earlier in 2003 and, according to at least one of the psychiatrists, this might have led to to an instability in his condition at the time of the offence. Since being taken into custody he has been in the Developmentally Delayed Unit at the Special Purpose Centre at Long Bay Prison. He has been receiving high doses of antipsychotic medication, and moderate doses of antidepressant medication. This appears to have stabilized his condition. All experts agree that the offender would be unable to function without support within the prison system, or live independently after his release. He will need a more structured and supervised environment, at least in the first place than was provided at Lowther Lodge. 25 Where does this leave us in the sentencing process? First it means that general deterrence should be afforded little or no weight in this case, as the offender, given his disability, is not an appropriate medium for making an example to others. Similarly, the offender's subjective culpability for his objectively brutal actions is significantly reduced. On the other hand, the circumstances of this offence, meaningless and brutal as it was, give rise to serious concerns as to his potential dangerousness in the future. Accordingly, individual deterrence and the protection of the public become major factors in the sentencing process. This was precisely the type of situation referred to and discussed by Gleeson CJ in R v Engert (1996) 84 ACR, page 67. 26 The killing of Mr Swann was, in the words of Dr O'dea, related to the offender's problems at the time in controlling his anger, aggression, and violent behaviour. These problems were in turn related to his psychiatric diagnosis of intellectual impairment and developmental delay, complicated by a history of problems with alcohol abuse and schizophrenia. Although these problems of anger, aggression, and violence appear to be under adequate control at present, particularly while he is receiving both psychiatric support and high levels of medication, the potential for repetition of some form of violent behaviour can by no means be dismissed. I agree, however, with Mr Fitzgerald that this is not the type of situation envisaged in the R v Veen (No.2). The offender here had no prior history of violent or aggressive behaviour. So long as he receives sufficient care and supervision, one would hope that his condition can be kept under control, thus avoiding a repetition of any serious violence in the future. 27 Clearly, the unusual circumstances of this case, particularly relating to the offender's disability and his need for a structured and supervised environment, constitute special circumstances under s44 of the Crimes (Sentencing Procedure) Act. This offence having been committed in June 2003, the standard non-parole period of 20 years would apply if this offence were in the middle range of objective seriousness for murder. Accordingly, if all else were equal, one would be looking at a non-parole parole period of that order and a total sentence of about 26 to 27 years for this offence. 28 All else is not, however, equal. To summarise what I have already said, the offender's subjective culpability for this offence is significantly reduced by reason of his disability. On the other hand the inexplicable nature of this killing, and the ferocity of the offender's actions, give rise to real concern as to his future management. 29 In my view of head sentence of 24 years would be appropriate in this case. In the light of the offender's need for close supervision over a lengthy period before he is finally released from all obligations under his sentence, I intend to impose a significantly lower non-parole period than would otherwise be applicable, with a correspondingly longer period of supervision in the community. 30 I should finally say that I have received and read the very sad victim impact statement of the deceased's mother. In accordance with s28 of the Act, however, I have not taken it into account in the determination of sentence in this matter. 31 David Hugh Laurie, for the offence of murdering Jeffrey 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.