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Court of Criminal Appeal 13 December 2000

Regina v Bednarz

[2000] NSWCCA 533

Other
SENTENCE EFFECT OF IMPRISONMENT ON THIRD PARTIES

Citation: Regina v Bednarz [2000] NSWCCA 533
Court: New South Wales Court of Criminal Appeal
Date: 13 December 2000
Judge(s): Simpson J; Howie J

Background

The applicant was convicted of a serious offence and sentenced in the District Court by Viney DCJ to a term of imprisonment. She applied to the Court of Criminal Appeal for leave to appeal against that sentence on the ground that it was manifestly excessive.

Two principal mitigating factors were pressed on appeal. First, the applicant had a significant psychiatric condition that was relevant to her mental state at the time of the offence. Second, her adult son Gregory was severely disabled, having multiple physical and cognitive impairments that left him entirely dependent on his mother for his day-to-day care and survival.

Psychiatric evidence from a consultant, Dr Jungfer, described Gregory's condition in detail. He suffered epilepsy, severe visual impairment, an inability to detect smell (creating serious safety risks), profound cognitive deficits, and a complete inability to live independently. The evidence established that the sudden removal of his mother would have serious physical and psychological consequences for him.

  • Whether the hardship that imprisonment would cause to a dependent third party (the applicant's adult son) constituted "highly exceptional" circumstances justifying a reduction in the sentence
  • Whether the applicant's psychiatric condition at the time of the offence reduced the weight to be given to general deterrence in fixing the sentence
  • Whether the sentence imposed by the District Court was manifestly excessive having regard to these factors

Decision

The Court confirmed the established principle, drawn from R v Wirth and applied in New South Wales in R v Edwards and R v T, that hardship to third parties will only affect a sentencing outcome in "highly exceptional" circumstances. The court emphasised that this formulation has real content and is not a meaningless standard. Where a case genuinely qualifies, both the decision to impose imprisonment and its duration may be affected.

Simpson J observed that the "highly exceptional" threshold is not confined to cases involving young children, though many of the decided cases have arisen in that context. The question in every case is whether the particular circumstances are truly exceptional, and minds may reasonably differ about where the line falls. The evidence concerning Gregory's condition was described as "very compelling indeed," placing this case in an analogous category to those involving sole-parent carers of young children.

Howie J found that the hardship to Gregory was of a different and more serious nature than the hardship that ordinarily attends a parent's imprisonment. However, given the objective seriousness of the offence, that hardship could not dictate the sentence. It was nonetheless a relevant factor that justified treating there as being special circumstances under section 44 of the Crimes (Sentencing) Procedure Act 1999, warranting a reduction in the non-parole period to allow a longer period on parole.

On the psychiatric condition, the Court accepted that the applicant's mental state at the time of the offence meant there was no need to reflect specific deterrence and only a much reduced requirement for general deterrence. Combining these factors with her prior good character, the original sentence was found to be manifestly excessive, though a significant term of full-time imprisonment remained necessary given the seriousness of the offending.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by the District Court quashed
  • In lieu, the applicant sentenced to 5 years imprisonment with a non-parole period of 2 years, both dating from 27 April 2000, with the non-parole period expiring on 27 April 2002

Key Takeaways

  • The Court of Criminal Appeal confirmed that hardship to third parties will only justify a departure from an otherwise appropriate sentence in "highly exceptional" circumstances, applying the principles from R v Wirth, R v T, and R v Edwards.
  • Where those exceptional circumstances are established, they may affect not only whether a custodial sentence is imposed but also its duration, including the length of the non-parole period.
  • The "highly exceptional" category is not limited to cases involving young children. Compelling evidence of severe dependency by an adult with profound disabilities can place a case in an analogous position.
  • A reduced requirement for general deterrence, arising from an offender's psychiatric condition at the time of the offence, is a distinct sentencing consideration capable of contributing to a finding of manifest excess when combined with other mitigating factors.
  • Special circumstances under section 44 of the Crimes (Sentencing) Procedure Act 1999 were found to exist, permitting a non-parole period shorter than would ordinarily be appropriate, in order to maximise the period the applicant could spend in the community caring for her son.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 26
- Crimes (Sentencing) Procedure Act 1999 (NSW), s 44

Cases
- R v Edwards (1996) 90 A Crim R 510
- R v Wirth (1976) 14 SASR 291
- R v T (1990) 47 A Crim R 29
- R v Carlton (unreported, 14 April 1989)
- R v Niga (unreported, 13 April 1994, CCA)
- R v Roberts (unreported, 31 August 1989)
- R v Spruce (unreported, 18 October 1990, CCA)
- R v Tiki (unreported, 24 August 1994, CCA)
- R v Toomalati [2000] NSWCCA 105
- R v Wilmot (unreported, 4 July 1994, CCA)
- R v Dib (unreported, 13 September 1991, CCA)
- Scognamilio (1919) A Crim R 81
- R v Letteri (unreported, 18 March 1992, CCA)
- R v Heather (unreported, 1 August 1995, CCA)