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35
Court of Criminal Appeal 27 October 1999

REGINA v MURCHIE

[1999] NSWCCA 424

Also reported as (1999) 108 A Crim R 482
Assault & violenceTheft & propertyPublic order & justice offences

Citation: [1999] NSWCCA 424
Court: NSW Court of Criminal Appeal
Date: 27 October 1999
Judge(s): Simpson J; Smart AJ

Background

The applicant, a young man aged 18 at the time of the offences, pleaded guilty in the District Court to three charges: robbery in company, assault, and malicious damage. The robbery involved entering a bank at Caringbah with three others, vaulting the counter, and facilitating the theft of over $16,000. Bank employees and customers were subjected to threatening conduct, including verbal threats to shoot.

The assault and malicious damage charges arose on 11 July 1997, when police attended the applicant's home as part of their investigation. During a police interview, the applicant seized a sabre from the table, pointed it at a detective, threatened to stab him, and then stabbed it into the back of the door five times as the officers retreated.

At sentencing in the District Court, Kinchington DCJ imposed a total of six years' penal servitude on the most serious charge, with a minimum term of three years and an additional term of three years, backdated to 11 July 1997. The applicant sought leave to appeal on the basis that the sentence was manifestly excessive, pointing in particular to his youth and a diagnosis of attention deficit hyperactivity disorder (ADHD).

  • Whether the sentencing judge gave adequate weight to the applicant's diagnosed ADHD as a mitigating factor
  • Whether the total sentence of six years for the robbery in company charge was manifestly excessive in all the circumstances
  • Whether the time spent on remand was separately considered as a mitigating factor
  • Whether special circumstances existed justifying departure from the statutory ratio between minimum and additional terms under the Sentencing Act 1989

Decision

The Court of Criminal Appeal found that the sentencing judge had erred in his treatment of the applicant's psychological condition. A diagnosis of ADHD had been confirmed by neuropsychological testing and was accepted by a psychiatrist who gave evidence. The disorder was relevant both to understanding the applicant's offending history and to assessing his prospects for rehabilitation, particularly given that treatment with medication was available and the applicant had expressed a wish to complete his education while in custody.

The Court accepted that the six-year sentence sat at the very upper end of the range appropriate for this offending. When that was combined with the failure to properly account for the ADHD diagnosis, the sentence was found to be manifestly excessive. The Court declined to find separate error in the sentencing judge's failure to specifically address the stresses of the remand period, as there was no evidence before the judge of particular difficulty suffered during that time.

The Court upheld the finding of special circumstances, justifying a longer-than-usual additional (parole) term relative to the minimum term. This reflected the applicant's age, his background, and the importance of supervised rehabilitation. The sentence was reduced to a total of five years' penal servitude. The sentences on the assault and malicious damage charges were left undisturbed.

Orders Made

  • Leave to appeal granted.
  • The sentence for robbery in company was quashed.
  • In substitution, a total term of five years' penal servitude was imposed, comprising a minimum term of two years and three months commencing 11 July 1997 and expiring 10 October 1999, and an additional term of two years and nine months commencing 11 October 1999 and expiring 10 July 2002.
  • The sentences for assault and malicious damage were not disturbed.
  • The new sentence also took into account the Form 1 matter (possession of pepper spray).
  • The Court recommended that the parole authorities and Corrective Services give urgent consideration to the applicant's release and his participation in preparatory programs.

Key Takeaways

  • A diagnosed psychological condition such as ADHD, supported by neuropsychological testing and expert evidence, constitutes a mitigating factor at sentencing that must be properly weighed; failure to do so can constitute identifiable error.
  • Where a sentence already sits at the very upper end of the appropriate range, any additional error in the treatment of a mitigating factor may, in combination, render the sentence manifestly excessive.
  • Special circumstances justifying departure from the statutory minimum-to-additional term ratio under the Sentencing Act 1989 may be established by reference to the offender's youth, background, and rehabilitation prospects.
  • The Court of Criminal Appeal confirmed that remand time does not automatically warrant separate credit at sentencing in the absence of evidence of particular hardship suffered during that period.
  • In cases involving young offenders with diagnosed but previously unrecognised conditions, the availability of treatment and the prospect of rehabilitation are relevant to the structure of the sentence, including the length of the supervised parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 97A, 195
- Criminal Procedure Act 1986 (NSW), s 21
- Sentencing Act 1989 (NSW), s 5

Cases:
- R v De Simoni (1981) 147 CLR 383
- R v Henry and Ors (unreported, NSWCCA)
- R v Jurisic (1998) 45 NSWLR 209
- R v Letteri (unreported, NSWCCA, 18 March 1992)
- R v Engert (1995) 84 A Crim R 67
- R v Fahda (unreported, NSWCCA)