Citation: Regina v Lemon [2000] NSWCCA 232
Court: New South Wales Court of Criminal Appeal
Date: 19 June 2000
Judge(s): Grove J, Newman J
Background
The applicant was a young man born in June 1977 with a substantial criminal history, including offences against traffic laws, assaulting police, breaking and entering, and robbery involving violence. He had been before the courts numerous times from October 1995 onwards.
He appeared in the Gosford District Court for sentencing on 15 counts across indictments for offences including breaking and entering, stealing, receiving, and disposing of stolen goods. A further nine offences were taken into account on a schedule. The sentencing judge, Nield DCJ, imposed a mixture of fixed terms of two and three years, enveloped by a principal sentence of a minimum term of four and a half years with an additional term of two and a half years. The extended additional term reflected a finding of special circumstances, particularly the applicant's age.
The applicant sought leave to appeal on the ground that the sentence was excessive, relying primarily on fresh psychological evidence that he suffered from Tourette's Syndrome, which reduced his capacity to resist impulsive behaviour including criminal conduct.
Legal Issues
- Whether fresh psychological evidence establishing a causal link between Tourette's Syndrome and the applicant's offending warranted a reduction in the sentence imposed below
- Whether the applicant's diagnosed condition reduced the weight properly given to general deterrence as a sentencing consideration
- Whether, under section 6 of the Criminal Appeal Act, a lesser sentence ought to be substituted for that imposed by the District Court
Decision
Grove J accepted that the sentences imposed, while at the top of the statistical range identified by the Judicial Commission, were not outside that range. The central question was therefore whether the fresh evidence from psychologist Janet Devlin, received by consent, justified the Court in substituting a lesser sentence.
Ms Devlin's report diagnosed Tourette's Syndrome and expressed the opinion that there was a causal connection between the syndrome and the applicant's criminal conduct, namely a reduced capacity to resist impulsive behaviour directed at property. This went further than what had been before the sentencing judge. At the original hearing, the applicant's sister had mentioned the syndrome in evidence, but the sentencing judge noted that no evidence had been led to show it caused or contributed to the offending.
Grove J acknowledged the principle drawn from R v Engert that where a condition reduces the relevance of general deterrence, it may simultaneously increase the importance of protecting the public. His Honour also noted that the syndrome had been recognised since the applicant's early childhood, yet its alleged causal connection to criminal behaviour was raised only at this late stage, after a long record of offending. Giving full weight to Ms Devlin's opinions, his Honour concluded that no different sentences suggested themselves.
Newman J agreed with Grove J's reasons and orders.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Fresh psychological evidence of a syndrome reducing impulse control does not automatically warrant a reduction in sentence, particularly where the offending is extensive, the condition is longstanding, and the sentences imposed are within the accepted range.
- In dismissing the appeal, the Court of Criminal Appeal applied the principle from R v Engert that a condition reducing the weight of general deterrence may correspondingly increase the sentencing purpose of protecting the public, requiring a careful balance.
- The late emergence of an alleged causal link between a diagnosed condition and criminal behaviour, especially where the condition had been identified since childhood and a lengthy criminal record already existed, was a material consideration against reducing the sentence.
- Under section 6 of the Criminal Appeal Act, a sentencing appeal requires the appellate court to be satisfied that a lesser sentence ought to be substituted; where the original sentence sits within range and fresh evidence does not compel a different assessment, that threshold is not met.
- An extended additional term reflecting special circumstances, such as the offender's youth, remains appropriate even where fresh evidence is later adduced, provided it does not displace the overall sentencing assessment.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act (NSW), s 6
- Sentencing Act 1989 (NSW), s 5(2)
- Criminal Procedure Act (NSW)
Cases:
- R v Engert (1995) 84 A Crim R 67