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Court of Criminal Appeal 9 August 2000

R v Perry

[2000] NSWCCA 375

Assault & violenceTheft & property
SEVERITY APPEAL MENTAL ILLNESS PROTECTION OF THE COMMUNITY

Citation: R v Perry [2000] NSWCCA 375
Court: New South Wales Court of Criminal Appeal
Date: 9 August 2000
Judge(s): James J; Dowd J

Background

The applicant pleaded guilty in the Sydney District Court to four offences: two counts of maliciously damaging property with intent to cause bodily harm, and two counts of maliciously damaging property under the Crimes Act 1900 (NSW). The offences involved a series of deliberately lit fires in January and March 1997. Two fires were set in a supported housing facility for women with mental illness, one of which the applicant intended to kill a fellow resident by leaving her in the smoke-filled building. A third fire caused approximately two million dollars in insurance payouts to a disability services building. A fourth fire was set in a residential unit while the occupant was asleep, resulting in severe burns to twenty-five per cent of his body.

The applicant had a significant psychiatric history, including diagnoses of schizophrenia and a borderline antisocial personality disorder, a mild intellectual disability, and a long pattern of problematic behaviour including stealing government buses. She had been under a guardianship order addressing her accommodation and healthcare needs. The sentencing judge, Shillington DCJ, imposed a minimum term of three years and an additional term of three years on the two most serious counts, with concurrent fixed terms of one year on the remaining two counts.

The applicant sought leave to appeal on the ground that the sentence was excessive.

  • Whether the sentencing judge placed excessive emphasis on the protection of the community when setting the sentence
  • Whether the applicant's mental illness and intellectual disability warranted a greater reduction in the sentence
  • Whether time spent in supervised accommodation prior to sentencing should have been treated as equivalent to quasi-custody, attracting a sentencing discount
  • Whether insufficient weight was given to the applicant's pleas of guilty

Decision

On the community protection ground, the Court affirmed that protection of the community is a legitimate and important sentencing consideration, particularly where an offender's mental condition gives rise to a real risk of future harm. The Court found no error in the weight the sentencing judge attached to this factor, noting the applicant's well-documented obsession with fire-lighting and the serious physical harm already caused to victims.

Regarding mental illness and intellectual disability, the Court acknowledged the applicant's significant psychiatric history and the genuine difficulty of sentencing someone in her circumstances. However, it found that the sentencing judge had adequately taken these factors into account. The objective gravity of the offences remained high, and the Court noted that a person without the applicant's disabilities would have received a considerably heavier sentence.

On the question of quasi-custody, the Court held, referring to R v Kivits, that time spent in supervised or restrictive accommodation does not automatically attract the same recognition as quasi-custody in the sentencing sense. The type of supervision the applicant required by reason of her condition was of a different character to the loss of liberty that typically qualifies for that discount.

The Court found no error in the weight given to the guilty pleas. Taking the objective seriousness of all four offences into account, and acknowledging the sentencing task as genuinely difficult, Dowd J concluded that the sentence was appropriate in the circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Community protection is a legitimate sentencing consideration where an offender's mental illness or disorder creates a demonstrated risk of future serious harm to others.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that mental illness and intellectual disability, while relevant mitigating factors, do not automatically override the need to reflect the objective gravity of serious offences in the sentence imposed.
  • Under the approach confirmed in R v Kivits, supervised or therapeutically managed accommodation does not necessarily constitute quasi-custody for sentencing purposes, even where that supervision is intensive and court-ordered.
  • A guilty plea carries genuine mitigating weight, but that weight may be limited where the objective seriousness of multiple offences is particularly high.
  • Sentences that appear heavy in isolation may nonetheless be appropriate where, as here, the equivalent sentence for an offender without the same disabilities would have been substantially more severe.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 195(b), 196(b)

Cases:
- Veen v The Queen (No 2) (1998) 164 CLR 465
- R v Eastway (Unreported, NSWCCA, 19 May 1992)
- R v Graham Campbell (Unreported, NSWCCA, 12 April 1999)
- R v Kivits (Unreported, NSWCCA, 4 November 1993)