Supreme Court New South Wales Medium Neutral Citation: R v Aller (No 2) [2015] NSWSC 402 Hearing dates: 27 March 2015 Date of orders: 10 April 2015 Decision date: 10 April 2015 Jurisdiction: Common Law Before: Hidden J Decision: Limiting term of 11 ½ years, to date from 1.8.12. Catchwords: CRIMINAL LAW – special hearing – manslaughter – substantial impairment – limiting term. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Mental Health (Forensic Provisions) Act 1990 Cases Cited: R v Aller [2015] NSWSC 178 Category: Sentence Parties: Regina (Crown) Representation: Counsel: Mr K McKay (Crown) Mr C Bruce SC (accused) Solicitors: S Kavanagh – Solicitor for Public Prosecutions (Crown) SE O'Connor – Legal Aid Commission (accused) File Number(s): 2012/240127 reasons for LIMITING TERM 1. On 31 July 2012, the accused, Michael John Aller, killed a woman with whom he had been in a relationship for a short time, Amy Aiton, by stabbing her repeatedly with a kitchen knife after an argument. 2. He was charged with the murder of Ms Aiton but, because of mental illness, was unfit to stand trial. At a special hearing, pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990, I found that on the limited material available he was not guilty of murder but that he had committed the crime of manslaughter. It is now my task to nominate a limiting term of imprisonment, as required by s 23(1)(b) of that Act. That term must be my best estimate of the sentence which would have been appropriate if the accused had been found guilty of manslaughter at a normal trial. Apart from the fact that I cannot set a non-parole period, I must apply relevant sentencing principles. 3. I found that the killing amounted to manslaughter rather than murder because the partial defence of substantial impairment, under s 23A of the Crimes Act 1900, had been made out. I was satisfied that at the time of the killing the accused's capacity to control himself was substantially impaired by an abnormality of mind arising from an underlying condition. That condition was described by a forensic psychiatrist, Dr Furst, as the prodromal presentation of a schizophrenic illness. 4. The facts of the offence, the background to it, and the psychiatric evidence are summarised in the reasons I gave for my verdict: R v Aller [2015] NSWSC 178, and need not be repeated. 5. As I recorded in those reasons, the accused stabbed Ms Aiton many times in what was a sustained and ferocious attack. The extent and severity of her injuries were described by the forensic pathologist, Dr Allen Cala, in a detailed post-mortem report. It is sufficient to quote the following passage from it: "There were so many wounds to the chest in particular that a description of each individual wound track was not possible. The amount of force required to cause the stab wounds is unknown however given that a number of ribs were completely stabbed through in the upper back, it follows that large or severe force would have been required at some stage to produce these injuries by stabbing through bone. The attack was sustained over possibly several minutes and was clearly of a very violent nature. The order of infliction of the stab wounds is not possible to ascertain with certainty. The deceased nevertheless attempted to defend herself by the presence of "defence" injuries on both arms and hands. These were sharp force injuries, caused by parrying or thwarting an attacker wielding a sharp object such as a knife. This indicates the deceased must have been alert and conscious enough at the time and tried to defend herself. Some of these defence wounds were very deep and would have been associated with rapid and large blood loss." 1. Nobody in Ms Aiton's position would have been able to ward off such an attack, but she was particularly vulnerable to it because of physical injuries she had suffered. I referred briefly in my reasons for verdict to the fact that she had been injured in a car accident. This was a very bad accident which occurred in 2004. She suffered a serious brain injury, causing paralysis on the left side of her body, for which she had to undergo long term treatment. While she made substantial progress, she was still affected by her condition at the time of her death. In particular, she had not regained the use of her left arm. The accused, of course, was aware of her condition. In the recorded police interview he said that she "could walk OK, but not much in her left hand … or left arm." 2. I also referred in my reasons for verdict to the accused's background, his history of alcohol abuse and his propensity to domestic violence. His criminal history includes a number of entries for offences of violence, contravening apprehended violence orders and using a carriage service to menace, harass or offend. I have the facts of a number of those offences, committed in a domestic context. 3. In April 2009, he was dealt with for a number of offences, committed between September and October 2008, against a woman to whom I shall refer as Danielle. It seems that he had been in a relationship with her, but at the relevant time it had broken down. Put shortly, these were offences conveniently referred to as telecommunication offences (using a carriage service to menace, harass or offend) and contravening apprehended violence orders. They disclose a pattern of behaviour whereby the accused left numerous phone messages for Danielle, either by voicemail or text, which were harassing, intimidating or sexually degrading. Some of these messages led to an apprehended violence order, but they continued thereafter. Some of those later messages were conciliatory, but were still in breach of a condition of the order prohibiting any contact with her. Other breaches occurred by his abusing her in the street, going to her home at night, and behaving in a threatening manner outside her home. On yet another occasion he smashed the lounge room window of her home with a rock, giving rise to a charge of malicious damage. There was a further telecommunication offence, when he rang her father to convey threats to her. 4. At the time of some of these offences he was intoxicated. For all the offences he was given a suspended sentence of 12 months, with a bond to be of good behaviour for the same period. 5. The remaining offences were committed against a woman whom I shall call Beth. She was the woman with whom the accused formed a relationship at a later stage, to whom I referred at [11] in my reasons for verdict. As I noted, in the recorded police interview he admitted having assaulted her in 2011. This was an incident which occurred in September 2011 at an RSL club when, apparently after a disagreement of some kind, he punched her in the face, causing facial injuries. He was arrested that day and police obtained an interim apprehended domestic violence order. A few days later, in breach of that order, he phoned Beth and threatened to harm himself if she did not take him back or end the legal action against him. He was on bail for both of these offences at the time of the manslaughter. In September 2012, while in custody, he was dealt with for them in a Local Court and sentenced to a short term of imprisonment. 6. In my reasons for verdict I recounted the fact that the accused had spent time at Miracle Haven Rehabilitation Centre before he began his relationship with Ms Aiton. It was his arrest for the offences committed against Beth which led to his admission to that centre, following a referral under the Magistrate's Early Referral Into Treatment (MERIT) Program. The statement of a caseworker at Miracle Haven, Mark Gambrill, reveals that his behaviour and progress while at the centre were satisfactory. However, he left the program about 2 months before its completion, telling Mr Gambrill that he did not believe he was going to "get any more from being here." Mr Gambrill described that decision as "out of the blue" to him. Nevertheless, a report of Ms Jessica Knight, caseworker with the MERIT program, of January 2012 certified him as having successfully completed the program and recommended that his legal matters proceed without any further involvement in it. 7. I received victim impact statements from Ms Aiton's mother, Debbie Roberts, her father, Allan Aiton, her grandmother, Yvonne Griggs, and her step-father, Christopher Horwood. Ms Roberts and Mr Horwood read their statements in court. The statements of Mr Aiton and Ms Griggs were read by a member of the Homicide Victim Support Group. All of them were deeply moving, expressing their grief and outrage at Ms Aiton's violent and untimely death. I also received photos of Ms Aiton, as a child and as an adult. 8. She was only 31 years old at the time of her death. Undoubtedly, it is dreadful that such a young life should be extinguished in that brutal and senseless manner. I well understand the pain and loss which those family members continue to experience. I expressed my deepest sympathy to them during the sentence proceedings, and I do so again now. The Crown prosecutor submitted that I should exercise my discretion under s 28(4) of the Crimes (Sentencing Procedure) Act 1999 to take those statements into account in determining the limiting term. Beyond reference to the terms of the subsection he did not develop that submission, and I do not consider it appropriate to take that course in this case. 9. Manslaughter, being the unlawful killing of a person, is an inherently serious offence. Nevertheless, it is one which can embrace a very wide variety and degree of criminality. This case falls into the more serious category of that crime. So much is apparent from the nature of the accused's attack upon Ms Aiton. The Crown prosecutor submitted that I should find that he intended to kill her. I am not so satisfied. However, there is force in the Crown prosecutor's submission that, in the circumstances of this offence, whether he intended to kill or inflict grievous bodily harm makes little difference to its objective criminality. While his consumption of alcohol on the day in question was not decisive of the issue of substantial impairment, I accept that it was a factor in his behaviour. That in no way excuses his conduct. Moreover, as the Crown prosecutor rightly pointed out, he was a man with a history of domestic violence when he was affected by alcohol and must be taken to have been aware of his propensity for violence in that state. Indeed, as I have said, he was on bail for offences involving domestic violence at the time. That breach of conditional liberty, of course, is also an aggravating feature to which I must have regard in arriving at the limiting term. 10. My decision that the killing should be characterised as manslaughter rather than murder entails a finding that it was the product of the substantial impairment of the accused's capacity to control himself at the time, that impairment arising from the mental condition identified by Dr Furst. Nevertheless, while accepting that that impairment was substantial, the extent to which his actions were affected by his mental condition remains an issue in determining the appropriate limiting term: cf R v Keceski (CCA, unreported, 10 August 1993), per Mahony JA at pp 10-11. In R v Cooper (CCA, unreported, 24 February 1998), a case dealing with the defence then known as diminished responsibility, Gleeson CJ (at p 24) observed in relation to sentence for manslaughter on that basis that "each case turns on its own facts, and the type of abnormality of mind and impairment of responsibility involved may vary greatly." 11. Section 23A of the Crimes Act envisages the impairment of an accused's capacity to understand events, or to judge whether his or her actions were right or wrong, as well as the capacity for self control. As the Crown prosecutor pointed out, there is no suggestion in the present case of any diminution of the accused's capacity to understand events or to judge whether his actions were right or wrong. The defence rested only on his capacity to control himself. Moreover, as I have said, alcohol made some contribution to his behaviour on this occasion. In the circumstances, I am persuaded by the Crown prosecutor's submission that the degree of impairment here was not significantly greater than that necessary to make out the defence. Accordingly, the accused's moral culpability was not markedly diminished. 12. On the other hand, as Mr Bruce submitted, the killing was spontaneous. The knife happened to be in the bedroom, as Ms Aiton kept it on her bedside table for the purpose of cleaning her bong. Mr Bruce also pointed out that, on the accused's account in the police interview, Ms Aiton made some provocative remarks in the heat of the argument. I accept that but, given the ferocity of the accused's reaction, he can derive no comfort from it. 13. I believe that the accused's account to police in the recorded interview was frank and unvarnished. In my reasons for verdict, at [24], I noted that he expressed remorse for his crime. At [34] I recorded that he had also done so to mental health professionals while in custody. This included his expressing regret after his suicide attempts that he was still alive, and I accept Mr Bruce's submission that those attempts were driven, at least in part, by his remorse. In the light of this material, I accept his expressions of remorse as genuine. 14. In a letter to the Director of Public Prosecutions of 3 July 2013, the accused's Legal Aid solicitor conveyed his willingness to plead guilty to manslaughter if the charge of murder were withdrawn. The Director declined to take that course. Mr Bruce relied upon that letter, the accused's admissions to police about his conduct from the outset, and the fact that the proceedings were conducted only on the issue of substantial impairment, to found a submission that the accused was entitled to a reduction of the limiting term on the basis that he had sought to facilitate the administration of justice: s 22A of the Crimes (Sentencing Procedure) Act. 15. On the face of it, the letter is problematic because it appears to convey an offer to plead guilty to manslaughter by an accused who was unfit to be tried and, accordingly, not in a position to make such a decision. However, Mr Bruce explained that over a period the accused's fitness to stand trial had fluctuated. As he put it, he was "in and out of fitness." A report of Dr Furst of 8 November 2013, exhibit 3, noted that the accused's "overall understanding of his legal situation and capacity to participate in a trial has deteriorated over recent weeks … ." Mr Bruce conveyed his instructions that in July 2013, when the letter was forwarded to the Director, he was fit. 16. This I accept. Further, the prerequisites of s 22A are also met by the accused's surrender to police, his early admissions, and the focused way in which the proceedings have been conducted. On this issue I would respectfully adopt the approach of Campbell J in R v Peterson (No 5) [2014] NSWSC 1080 at [12]-[13], [17]. 17. Taking all the circumstances into account, but for the reduction of sentence to which the accused is entitled under s 22A, I would have nominated a limiting term of imprisonment for 14 years. In the light of his facilitation of the administration of justice, I would reduce that term by 15%. This produces a term of a little under 12 years, which I would round down to 11 ½ years. Accordingly, I nominate a limiting term of 11 ½ years, to date from the day the accused was taken into custody, 1 August 2012. I shall consult the parties about the orders to be made under s 24(1) of the Mental Health (Forensic Provisions) Act. Orders 1. Limiting term of 11 years & 6 months to date from 1 August 2012. 2. Under s 24 of the Mental Health (Forensic Provisions) Act 1990 I refer Mr Aller to the Mental Health Review Tribunal in light of the limiting term I have nominated. I order that he be held in custody in an appropriate correctional centre until further assessment by the Tribunal. ********** 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. Decision last updated: 10 April 2015