R v Porritt [2008] ACTSC 71 (7 August 2008)

Last Updated: 8 September 2008

HUMAN RIGHTS ACT

R v GLEN MALCOLM PORRITT

[2008] ACTSC 71 (7 August 2008)

Crimes (Sentencing) Act 2005 (ACT)

Human Rights Act 2004 (ACT)

R v Lavender [2005] HCA 37; (2005) 222 CLR 67

Georgina Marie Hill (1981) 3 A Crim R 397

R v Bruce St James (unreported, Supreme Court of Victoria, Court of Criminal Appeal, Young CJ, Marks and Nathan JJ, 28 June 1989)

R v George (2004) 149 A Crim R 38; [2004] NSWCCA 247

R v Jaques (SCC 32 of 2004)

REMARKS ON SENTENCE

No. SCC 56 of 2007

Judge: Higgins CJ

Supreme Court of the ACT

Date: 7 August 2008

IN THE SUPREME COURT OF THE )

) No. SCC 56 of 2007

AUSTRALIAN CAPITAL TERRITORY )

R

v

GLEN MALCOLM PORRITT

ORDER

Judge: Higgins CJ

Date: 7 August 2008

Place: Canberra

THE COURT ORDERS THAT:

1. For the offence of unlawful homicide, the offender is convicted and sentenced to five years’ imprisonment.

2. That sentence is to commence, in accordance with s 63(2) of the Crimes (Sentencing) Act 2005, on the 7th day of October 2006.

3. The offender is to be released after serving 22 months of that sentence, upon entry into a good behaviour order for a period of four years from the date of his release.

4. The terms of that good behaviour order are, in addition to the core conditions, that the offender accept the supervision of the Chief Executive of Corrective Services, and obey all reasonable directions of the Chief Executive or such person or persons as the Chief Executive may from time to time appoint for the purpose. Those directions may include participation in such courses, counselling or programs as are deemed appropriate.

5. It is a further condition that the offender comply with the terms of any mental health order, including the current such order, to which he may from time to time be subjected by the Mental Health Tribunal.

1. The offender, Glen Malcolm Porritt was, on 22 April 2008, found guilty by me of the unlawful homicide of Nannette Mary Porritt, his mother.

2. The facts, as I found them to be, are recited in the decision I handed down on that day. I found the offender to be a truthful witness and I accept fully his account of how the death of his mother occurred.

3. The gravamen of the criminally negligent conduct I found the offender to have engaged in was, firstly, that he refused to leave his parents’ home when requested by his mother to do so. I accept that she was angry with him for raising the issue of compensation for the wrongs he perceived to have been done to him.

4. Tragically, she chose to reinforce her demand by picking up and brandishing a sharp kitchen knife. Even so, had the offender then chosen to leave the house the appalling consequences that followed would not have ensued.

5. To compound his fault, the offender not only remained in the house but, knowing his mother was going upstairs to call police to have him removed, he followed her.

6. His decision to do so led to the fatal consequences. He became trapped in the bedroom, intent at first on preventing police being called. His mother, not unnaturally, was seriously alarmed at his persistence and slashed at him with the knife.

7. That led to the initial wounding of his mother. It is possible that wound was life-threatening but the situation was compounded and made certainly fatal by his panicked attempt to leave the room negligently unmindful of his then possession of the knife.

8. This degree of negligence was not only criminal, it was seriously so. It was compounded by his failure to heed his mother’s direction to leave the house, a direction she was entitled to give.

9. There are subjective factors mitigating his criminal responsibility and favouring a degree of leniency.

10. Firstly, there is his youth and lack of prior criminal history, save for an event nearly seven years ago, in which an argument with his mother over her treatment of his sisters led to a finding of guilt without conviction for minor damage to a door and for assault. The assault could have been defended on the basis of self-defence but was not. It was a trivial assault in any event.

11. There are also two matters associated with this matter of failing to appear at the inquest into his mother’s death when he fled to Queensland and, in coming to attention in Queensland, for failing to obey a direction from police. No conviction was recorded on the latter matter which was dealt with in Queensland. The former matter is to be taken into account in these proceedings. Each of those offences was committed whilst the offender was in a seriously disturbed mental state following his mother’s death.

12. Ms Bromwich, Probation and Parole Officer, noted that the relationship between the offender and his sisters, on the one hand, and their mother, in particular, was “far more adversarial than occurs in most families”. It is clear that the offender’s father, whilst supporting his wife in disciplinary matters, also attempted to ameliorate some of her more extreme punishments. That is not to say that these punishments were in themselves excessive. It seems they were persisted in to an unreasonable degree. This seemed to be due to Mrs Porritt’s inability to back down or compromise.

13. That was a trait that Mr Keith Porritt admired, though the offender and his sisters found it distressing.

14. One of the punishments which the offender found particularly distressing was his mother’s withholding of his acne medication. This caused him considerable pain and suffering to the extent that, after he left home, he took steps aimed towards suing his parents for neglect. His mother was particularly anxious about that prospect, though she would certainly not have acceded to any demand of that kind.

15. It is clear that the offender had become obsessed with the compensation issue. He had become aware that his parents had attended his graduation and, as Mr Keith Porritt also perceived, that his mother was open to a reconciliation, though it would have had to have been on her terms.

16. The explanation for the offender so tragically misreading the cues his mother gave him on 21 December 2005 lies with Dr Daniel Bonner’s psychiatric assessment of him. He found that the offender had symptoms of Asperger’s Disorder. This is, in his case, characterised by “a marked lack of ability to appreciate social cues, nuances in conversation ... to anticipate the thoughts and behaviours of others in social situations”.

17. The stress of being charged with his mother’s murder and being remanded in custody triggered an acute and florid mental illness in early March 2007. This was a schizophrenia type disorder characterised by recall being then experienced of the events resulting in his mother’s death which, until then, had been suppressed.

18. He has, as a result, been placed under an involuntary mental health treatment order and prescribed anti-psychotic medication.

19. It is relevant to note that Dr Bonner considers it necessary to continue to monitor the offender’s mental health in the Australian Capital Territory whether or not he is in custody.

20. As Dr Bonner expressed it, there are three concerns:

1. The need for continued monitoring under a Psychiatric Treatment Order

I intend to keep Mr Porritt on a Psychiatric Treatment Order at least until 16 October 2008 (when the current order expires), with the aim of swiftly enacting treatment should a relapse of psychosis occur. I respectfully suggest that there may likely be problems in obtaining an equivalent order in NSW and in providing the same degree of follow up he currently receives in the ACT. There are provisions for transferring his order to NSW in ACT and NSW Mental Health Acts. However, these are relatively new and untested. Ms Cravino in particular has been his clinical manager and has provided regular therapeutic contact over the past year. This kind of contact could be continued by our detainee team here in the ACT.

2. The effect of change of routine

I am also of the view that Mr Porritt’s risk of future psychotic episodes may be increased if his routine is disrupted by the move to NSW. There he might face issues ranging from being affronted by other prisoners smoking to assimilating with cell-mates to greater exposure to violence might be present. Mr Porritt is a staunch non-smoker and is currently in a cell by himself, which he prefers.

3. The positive effect of his family’s proximity upon his mental health.

Mr Porritt’s family visit at least once a week. This is currently a stabilising factor, which may reduce the load of stress and reduce the risk of mental health problems.

21. Ms Bromwich found that the offender was, as might be expected, genuinely remorseful for his actions. He blamed himself, as well he might, for his wrong doing in failing to leave when asked. To quote him:

The real tragedy is though, that shortly before she died she was trying to make amends with me ... have a relationship with her son ... if I hadn’t gone there on that day, perhaps my parents could have come to me ... on their terms, and we could have made peace ... and she wouldn’t have died.

22. There were a number of victim impact statements tendered. One from each of the offender’s sisters. Both were severely traumatised by their mother’s death yet understood the circumstances in which it had happened. Both were grateful to the offender for his support when they had suffered under their mother’s harsh discipline.

23. Most poignant, and written from a more adult perspective, was that of Mr Keith Porritt. He clearly loved and admired the deceased though he acknowledged that she was short-tempered and a harsh disciplinarian. He could see that this apparent harshness was her way of preparing her children for life and, though they could not always see it, was an expression of her love for them. He acknowledged that his son’s offence was not deliberate and that the offender had suffered greatly as a result of it. He would welcome the offender back to the family home despite all the grief and suffering.

24. The victim’s sister, Cathy Johnston, expressed her own grief over Mrs Porritt’s death. Plainly, she had no knowledge of the negative perceptions of her sister’s methods of conducting her family relationships but she was right, in my view, to surmise that it was an expression of the deceased’s endeavours to be a responsible parent.

25. Another perspective came from the offender’s paternal grandfather. It was a plea for leniency towards the offender, whilst not minimising the dreadful impact of his criminal conduct.

26. The crime of unlawful homicide, manslaughter, is one which may encompass a variety of circumstances from what is, objectively, criminally negligent conduct, up to deliberate and unlawful violence likely to cause death but not intended to do so, or not appreciated as likely so to do.

27. The most recent High Court decision on this category of manslaughter is R v Lavender [2005] HCA 37; (2005) 222 CLR 67. The offender drove over and killed a boy he was pursuing over sand dunes in a dune buggy. It is clear from this decision that the gravamen of the offence is objective carelessness. The course the offender in that case undertook was deliberate and premeditated, though the fatal contact was not actually intended or foreseen.

28. The trial judge had sentenced the offender to four years’ imprisonment with a non-parole period of 18 months. On appeal, there having been no subjective appreciation of the risk, the New South Wales Court of Criminal Appeal set aside the conviction and sentence. That sentence was restored by the High Court decision.

29. I was referred by counsel to certain other decisions. I bear in mind that there is not, and cannot be, a “tariff” for negligent homicide. Nevertheless, those cases do have in common the absence of malicious intent.

30. In Georgina Marie Hill (1981) 3 A Crim R 397, the offender discharged a rifle at her defacto husband who was prone to drunkenness and violence. On the matter of sentence Street CJ assessed that situation as (at 403):

... more deliberate than what is at times encountered in a manslaughter situation within a domestic circle of two persons struggling together in a mutually drunken state in which one seizes a knife from a nearby receptacle and the knife finds its way into a mortal part of one or other of the participants in the struggle.

31. Even so, the Court imposed a head sentence of but four and a half years with a non-parole period of one year.

32. In R v Bruce St James (unreported, Supreme Court of Victoria, Court of Criminal Appeal, Young CJ, Marks and Nathan JJ, 28 June 1989) an appeal was denied to the Crown in a manslaughter by negligence case. The accused had accidentally but negligently shot his wife. He was sentenced to a term of two and a half years with a minimum of 15 months to be served before becoming eligible for parole.

33. It is fair to observe that the negligence in that case was less egregious than it is in the present case.

34. In R v George (2004) 149 A Crim R 38; [2004] NSWCCA 247, the accused had negligently failed to care for his elderly mother. The latter had been difficult and dictatorial despite her frailty. Nevertheless, the neglect was sustained. There was evidence, up to the point the victim had became incompetent, that she had refused care but, thereafter, the offender had been “grossly and wickedly negligent” in failing to give it.

35. His neglect was contributed to by a condition not unlike that which this offender has, that is, a mild form of Asperger’s syndrome. The Court did acknowledge that the psychiatric evidence, whilst not relieving the offender of criminal responsibility did (at [41]):

... warrant a finding that his objective criminality was reduced beyond that which a bare analysis of the neglected state of the deceased would, at first blush, suggest.

36. Whilst acknowledging the wide variety of circumstances which can give rise to a charge of manslaughter, the Court did, nevertheless, point out that (at [46]):

... while it is always necessary to have regard to the particular factual context in order to understand the human tragedy involved in any particular case, it is also not possible to overlook the circumstance that the offence involves the felonious taking of a human life and, as such, calls for a grave measure of criminal justice, that is, one commensurate to the objective and subjective circumstances of the case: R v Hill (1981) 3 A Crim R 397.

37. In the circumstances, the Court reduced the original sentence of seven years, with a non-parole period of four years, to three and a half years with a non-parole period of two years.

38. I also note that, on 24 August 2004, in R v Jaques (SCC 32 of 2004), Madgwick J, in this Court, sentenced an offender who, whilst acquitted of murder, had been found guilty of manslaughter, to two years’ imprisonment with a non-parole period of nine months. The deceased had perched himself on a railing overlooking a roadway that passed underneath the walkway. The accused went towards the deceased rather suddenly so that the deceased, either startled or inadvertently pushed, fell to his death.

39. His Honour characterised the fault of the offender as “an act of extreme folly”. Though low on the scale of criminal negligence, his Honour considered that the loss of a human life made it impossible to impose anything other than a sentence of imprisonment of which a portion had to be served.

40. So it is in the present case. It is impossible to reflect adequately in any sentence the enormity of the loss of the life of Nanette (Sandy) Porritt. There is no sense in which that loss can be regarded as anything less than an unwarranted, unjustifiable and terrible consequence.

41. It is, however, the Court’s duty to punish any person bearing criminal responsibility for this event, commensurately with that responsibility, after taking account of the personal circumstances of that person and the interest of the community in the rehabilitation and humane treatment of offenders. It is not, and cannot be, any measure of the worth of the life taken. The issue is the measure of the criminal responsibility of the offender. There is statutory recognition of those propositions both in the Crimes (Sentencing) Act 2005 (ACT), s 7, and the Human Rights Act 2004 (ACT), s 10(1)(b).

42. This has particular relevance to the continuation of the mental health treatment needs of the offender as identified by Dr Bonner.

43. Having regard to all those circumstances, I impose sentence as follows:

44. Glen Malcolm Porritt, please stand:

For the offence of unlawful homicide of which you were found guilty on 22 April 2008, I formally record a conviction and sentence you to five years’ imprisonment.

That sentence is to commence, in accordance with s 63(2) of the Crimes (Sentencing) Act 2005, on the 7th day of October 2006.

You are to be released after serving 22 months of that sentence.

As required by s 12 of the Crimes (Sentencing) Act 2005, I make a good behaviour order for a period of four years from the date of your release.

In addition to the core conditions you are to accept the supervision of the Chief Executive, Corrective Services, and obey all reasonable directions of the Chief Executive or such person or persons as the Chief Executive may from time to time appoint for the purpose. Those directions may include participation in such courses, counselling or programs as are deemed appropriate.

It is a further condition that you comply with the terms of any mental health order, including the current such order, to which you may from time to time be subjected by the Mental Health Tribunal.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 7 August 2008

Counsel for the Crown: Mr C Todd

Solicitor for the Crown: Director for Public Prosecutions for the ACT

Counsel for the defendant: Mr J Harris SC

Solicitor for the defendant: Legal Aid Office (ACT)

Date of hearing: 12 June 2008

Date of sentence: 7 August 2008