|
|
[Home] [Help] [Databases] [WorldLII] [Feedback] |
|
Aboriginal Law Bulletin |
by Martin L. Sides
The Crimes (Homicide) Amendment Act 1982 came into effect on 14 May 1982. This amendment alters the law of provocation relating to murder and sentences imposed upon conviction for murder. Up until the amendment came into effect, life sentence was mandatory in murder cases in New South Wales because of section 19 of the Crimes Act 1900. The amendment was designed to ameliorate the severity and inflexibility of section 19. Now a life sentence will be imposed unless 'it appears to the Judge that the person's culpability for the crime is significantly diminished by mitigating circumstances, whether disclosed by the evidence in the trial or otherwise.'
The first person to receive the benefit of these amendments was a thirty-five year old Aboriginal man, Eric James Murray who pleaded Guilty to murder and other offences before Mr Justice Cross in the Supreme Court on 29 June 1982. He was sentenced on 13 July. (Roden J in R v Burke & Anor., 24 June 1982, unreported, had considered the provisions in a trial where a jury had returned a verdict of Guilty of murder. His Honour had declined to apply the provisions.)
Murray was the first person to plead Guilty to murder since the amendments took effect. He pleaded Guilty to murder for two reasons. His only defence, as counsel saw it, was that of diminished responsibility. The Crown would not accept a plea to manslaughter on the basis of diminished responsibility because Dr Schmalzbach, their own expert, had not seen Murray (who had declined to be interviewed by Dr Schmalzbach). Secondly, psychiatric evidence available to Murray was not very strong on the question of diminished responsibility. Had Murray pleaded Not Guilty and the trial been conducted on the basis of diminished responsibility and had Murray been convicted of murder, it would have been very unlikely that he would have been entitled to point to the psychiatric evidence on the question of sentence and receive the benefit of the new amendment.
The offence to which Murray pleaded Guilty arose on 18 August 1981 following his escape from Kirkonnell Afforestation Camp near Bathurst three days earlier. At the time of his escape, Murray had been at the camp for two days, having been transferred from Parramatta Gaol. It is sufficient to say that the facts surrounding the main offence were horrific.
Murray had a lengthy criminal history, primarily for dishonesty, dating back to when he was twelve years of age. He had apparently been in Bogga Road Gaol, Brisbane, for the first time when he was aged eighteen. He had spent the overwhelming proportion of his life in an institution of one sort or another. It is not without significance that Cross J adverted to Murray's criminal history at the opening of his judgment on sentence. As that history shows, on occasions when Murray was in gaol in Sydney and moved to the country, he reacted adversely by either committing criminal offences or by doing injury to himself (such as amputating a number of fingers). One may ask why he was transferred from a Sydney gaol when it was quite apparent that his behaviour was maintained within acceptable limits whilst he was housed in one of the Sydney gaols. Whilst the Judge was not openly critical of the prison authorities in his reasons for sentence, it is not unreasonable to infer that in reciting Murray's criminal history at the commencement of his judgment, Cross J was being somewhat critical of the authorities' handling of Murray's transfer.
A psychiatrist's report was tendered by the defence. The report indicated that Murray suffered from a severe personality disorder arising from considerable emotional deprivation. In the course of his reasons for sentence, Cross J quoted extensively from the report.
Cross J was of the view that upon conviction for murder a life sentence was still mandatory unless there was material before the Judge that satisfied him of the existence of a mitigating circumstance which significantly diminished the prisoner's culpability for the crime. Roden J in Burke, mentioned earlier, was of the same view. In Cross J's view, the burden of proof of so persuading a Judge was on the balance of probabilities, but the onus did not specifically fall upon the prisoner.
The real problem raised by the amending legislation from the point of view of interpretation arose in interpreting the words 'culpability for the crime'. In Cross J's view, those words meant blameworthiness for the crime, so that the provisions could only be invoked where the mitigating circumstances were directly connected to the blameworthiness for the crime. Things such as personality traits that did not go to the issue of blameworthiness were irrelevant to a consideration as to whether or not the amendments should be applied. Such matters only arose in deciding whether to impose a determinate sentence or not. It seems that Roden J in Burke does not agree with this view. However, both Judges assume that any sentence arising from the application of these provisions must be less than the period of time a person would normally remain in custody if he received a life sentence.
Cross J gave a number of illustrations of situations where a convicted murderer might successfully rely upon these new amendments: in a case where self defence had been unsuccessful because the prisoner's response had been excessive; and where a prisoner's mental responsibility was diminished but the jury was not satisfied the defence of diminished responsibility was made out. In Burke, Roden J gave a related illustration, namely where a defence of provocation had been raised but was not sufficient to warrant a conviction for manslaughter rather than murder. Cross J was at pains to observe that those illustrations he gave should not be treated as exhaustive.
Cross J, after referring to the horrifying nature of the crime, then went on to observe:
Indeed, the murder itself was so unprovoked and extraordinary that a Court's suspicion would instinctively be aroused as to the nature of the prisoner's mental condition, responsibility etc.
He then referred at length to the psychiatric report and observed that Murray was very close to a case of diminished responsibility and concluded that the amendments should be applied.
Cross J effectively sentenced Murray on all the offences to a period of sixteen years, to commence from December 1985 (when his current sentence expired). He set a non-parole period of ten years to date from the date of sentence. In so doing, His Honour observed that a non-parole period must be realistically less than the period a person would normally serve upon a sentence for life imprisonment.
The case is of some significance because evidence indicated that Murray's condition was the result of emotional deprivation arising at an early age, a deprivation accentuated by Murray's institutionalisation from the age of twelve. Since that age, he had had no contact with his family whatsoever. It was in these circumstances that Cross J held that the Crimes (Homicide) Amendment Act 1982, so far as it altered the law relating to sentencing upon a conviction for murder, was applicable.