Citation: Manna v R [1999] NSWCCA 314
Court: NSW Court of Criminal Appeal
Date: 10 December 1999
Judge(s): Handley JA, Grove J, Hidden J
Background
The applicant pleaded guilty in the Penrith District Court to wounding with intent to murder, following a violent armed robbery at a TAFE college in February 1997. He approached a Coca-Cola vending machine serviceman at gunpoint, demanded money and keys, and then shot the victim five times. The victim survived, but suffered serious and lasting injuries. A seven-year-old child witnessed the attack.
The sentencing judge imposed penal servitude for twenty years, comprising a minimum term of fifteen years and an additional term of five years. The applicant sought leave to appeal against that sentence, arguing it was excessive.
A central issue at sentence was the applicant's psychiatric history. He was twenty-three at the time of the offence, had a criminal record that included drug supply and firearm offences, and had a background of poly-drug abuse, steroid use, and a history of anger and aggression. A psychiatrist's report noted probable drug intoxication at the time of the offence, though the applicant had provided a false and internally inconsistent account of events.
Legal Issues
- Whether the sentencing judge erred in finding that the applicant's psychiatric history provided no explanation for the commission of the offence
- Whether the psychiatric material required the sentencing judge to apply a degree of leniency in fixing the sentence
- Whether the sentence of twenty years penal servitude was warranted in law, having regard to the objective and subjective circumstances
Decision
The Court dismissed the appeal by majority, with Handley JA and Grove J forming the majority and Hidden J dissenting. The central disagreement concerned whether the sentencing judge had erred in concluding that the applicant's psychiatric background bore no real connection to the offence.
Grove J, in the majority, held that the sentencing judge's conclusion was open on the evidence. The psychiatrist, Dr Klug, had found no evidence of psychosis or other acute mental illness on examination. His opinion rested on a history provided by an admittedly unreliable historian who had given a demonstrably false account of the shooting. In those circumstances, the sentencing judge was entitled to treat the psychiatric material with caution.
Grove J further observed that psychiatric or background material is of limited utility at sentence unless it actually attracts mitigation. The question was whether the sentencing discretion had miscarried. The majority found it had not. The sentence was acknowledged to be severe, but the offence itself was grave: a premeditated armed robbery culminating in five deliberate shots fired at a defenceless man in front of his family.
Hidden J, in dissent, took the view that the sentencing judge had fallen into error in holding that the psychiatric history provided no explanation for the crime, and would have intervened to reduce the sentence. That view did not prevail.
Orders Made
- Appeal dismissed by majority
Key Takeaways
- Psychiatric or background evidence does not automatically attract mitigation at sentence; such material is of limited utility unless it actually explains or contextualises the offending in a way that warrants leniency.
- Where a psychiatrist's report is based on an account provided by a demonstrably unreliable historian, a sentencing judge is entitled to treat the resulting opinions with caution and to find that the psychiatric history has no real bearing on the commission of the offence.
- No error was established merely because the sentencing judge declined to draw a causal connection between a history of drug abuse, steroid use, and aggression on one hand, and a deliberate armed robbery and shooting on the other.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that intervention is warranted only where a sentencing discretion has miscarried; a sentence that is capable of being viewed as severe does not, of itself, meet that threshold.
- Comparator cases involving wounding with intent to murder, including contract killings and armed robberies resulting in serious injury, showed that sentences at or near twenty years (with minimum terms of fifteen years) had been upheld or reduced only modestly in comparable circumstances.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases:
- R v Engert (1995) 84 ACrim R 67
- Veen v The Queen (No 2) (1987-1988) 164 CLR 465
- Sindoni (NSW CCA, unreported, 27 April 1993)
- Cool (NSW CCA, unreported, 2 June 1994)
- Merritt (NSW CCA, unreported, 26 February 1996)
- Nguyen (NSW CCA, unreported, 13 June 1991)
- Papalia (NSW CCA, unreported, 18 July 1996)
- Azzopardi (NSW CCA, unreported, 1 October 1998)
- Applebee (NSW CCA, unreported, 16 July 1991)