CRIME — manslaughter — offender unfit to be tried and found at a special hearing to have committed the offence of manslaughter — offender subsequently became fit to be tried — plea of guilty to manslaughter owing to substantial impairment
SENTENCING — violent offending — substantial impairment — Bugmy factors — victim impact statements — remorse — prospects of rehabilitation — where previous non-compliance with release conditions affected by external stressors — ceiling principle not applied
Quick Take
1The ceiling principle from R v Gilmore has limited application where the offender is being sentenced for the first time after regaining fitness to be tried, rather than being re-sentenced following a successful appeal, because neither of the policy considerations underpinning the principle (risk of heavier sentence discouraging appeals, or appearance of retribution for successful appeal) is engaged.
2Where an offender's mental health condition contributed to the offence, moral culpability may be reduced beyond what is inherent in the partial defence of substantial impairment under s 23A Crimes Act 1900 (NSW), following Camilleri v R, and the offender is a less suitable vehicle for general deterrence per De La Rosa.
3An unaccepted offer to plead guilty to the offence for which the offender is ultimately convicted attracts the full utilitarian discount (here 25% under former s 22 Crimes (Sentencing Procedure) Act), particularly where the plea could not be entered due to unfitness beyond the offender's control, per R v Oinonen.
