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Court of Criminal Appeal 7 May 2001

R v Russon

[2001] NSWCCA 166

Assault & violenceTheft & propertyPublic order & justice offences
SENTENCING ROBBERY ASSAULT POLICE

Citation: Russon v R [2001] NSWCCA 166
Court: NSW Court of Criminal Appeal
Date: 7 May 2001
Judge(s): Carruthers AJ; Badgery-Parker AJ

Background

The appellant was a 35-year-old man who pleaded guilty to two offences committed on 12 August 1999: armed robbery under s 97(1) of the Crimes Act 1900 and assault police under s 61 of the same Act. He had held a knife to a taxi driver's throat demanding money, though he left without any. Shortly after, he confronted approaching police officers while brandishing a piece of wood concealed under his shirt, threatening to shoot them. The officers genuinely believed he was armed.

The appellant had a lengthy criminal history dating to 1982 and was on parole at the time of the offences. In his police interview, he stated his intention in robbing the taxi driver was to get money "to score", and that during the confrontation with police he would have preferred to be shot dead than return to gaol.

At sentencing in the Newcastle District Court, substantial psychiatric and psychological evidence was tendered on the appellant's behalf. This included a report from a consultant psychiatrist who had examined the appellant the day before the offences, documenting likely personality disorder, anxiety disorder, substance dependence, and hypnosedative withdrawal. The sentencing judge imposed six years imprisonment with a four-year minimum term on count one, and a concurrent two-year fixed term on count two.

  • Whether the sentencing judge erred in finding that the appellant's psychiatric and psychological conditions played no role in the commission of the offences.
  • Whether that finding led to an insufficient adjustment of the statutory ratio between the non-parole period and the overall sentence term.

Decision

The Court of Criminal Appeal found that the sentencing judge had erred in dismissing the relevance of the appellant's psychiatric and psychological conditions to the commission of the offences. The evidence, including the consultant psychiatrist's report and clinical records showing a suicide attempt and panic attack in the days immediately before the offences, supported a finding that those conditions did play a role.

The Court noted that the judge had instead attributed the offending entirely to long-standing drug and alcohol abuse. While substance abuse may not itself be a mitigating factor, the Court found the broader psychiatric context, which was distinct from mere substance misuse, warranted greater weight as a subjective circumstance.

However, the Court was not persuaded that the overall sentence length was incorrect, given the serious objective circumstances. Both the taxi driver and the arresting police officers had been subjected to genuinely frightening experiences. The appropriate remedy was an adjustment to the non-parole period rather than the total term.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld.
  • Original sentences set aside.
  • Count 1 (armed robbery): overall term of six years from 12 August 1999 to 11 August 2005, with a non-parole period of three years from 12 August 1999 to 11 August 2002.
  • Count 2 (assault police): fixed term of two years from 12 August 1999 to 11 August 2001, to be served concurrently.

Key Takeaways

  • A sentencing court's outright rejection of psychiatric and psychological evidence, without adequate reasoning, can constitute an error warranting appellate intervention, even where the overall sentence length is maintained.
  • Where a defendant presents credible expert evidence of significant mental health conditions that existed at the time of offending, that evidence is a relevant subjective circumstance in sentencing, separate from any consideration of drug and alcohol abuse.
  • The Court of Criminal Appeal confirmed that the appropriate response to such an error is not necessarily a reduction in the total sentence, but may instead be a recalibration of the non-parole period to reflect subjective circumstances more accurately.
  • Clinical records generated in the days immediately before an offence, including hospital admissions and psychiatric consultations, can carry significant weight in establishing the relevance of a mental health condition to the commission of the offence.
  • Upholding the objective seriousness of offences involving genuine fear and harm to victims does not preclude giving proper weight to an offender's mental health as a distinct subjective factor at the sentencing stage.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (armed robbery)
- Crimes Act 1900 (NSW), s 61 (assault police)

Cases:
No specific cases were cited in the portions of the judgment provided.