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10
Court of Criminal Appeal 9 May 2001

REGINA v. MACADAM-KELLIE

[2001] NSWCCA 170

Assault & violenceHomicideDomestic & family violence
CRIMINAL LAW SENTENCE APPEAL ATTEMPTED MURDER OF ESTRANGED SPOUSE EFFECT OF DEPRESSION FRESH EVIDENCE SENTENCE.

Citation: [2001] NSWCCA 170
Court: NSW Court of Criminal Appeal
Date: 9 May 2001
Judge(s): Wood CJ at CL; Greg James J

Background

The appellant pleaded guilty in the District Court at Newcastle to one count of wounding with intent to murder, contrary to s 25 of the Crimes Act 1900. The maximum penalty for that offence is 25 years imprisonment. The victim was his estranged wife.

The offence occurred outside the Newcastle Family Law Court on 24 February 1999, where both parties were due to appear for proceedings relating to custody and access. The appellant had concealed a 30-centimetre bread knife in his belt and, when his wife arrived with their four-year-old son, he pursued and stabbed her multiple times in a public setting. The injuries were life-threatening and surgery at John Hunter Hospital revealed wounds narrowly missing the aorta. The victim survived. An apprehended violence order was in force against the appellant at the time of the attack.

The District Court sentenced the appellant to 16 years imprisonment with a non-parole period of 12 years, commencing from the date of arrest. The appellant sought leave to appeal that sentence to the Court of Criminal Appeal.

  • Whether the sentencing judge erred by proceeding on a mistaken factual assumption that the appellant's major depressive illness was not operative at the time of the offence.
  • Whether fresh psychiatric evidence, not available at the original sentence hearing, established a causal link between the depression and the commission of the offence.
  • Whether, if error was established, a lesser sentence was warranted having regard to the objective seriousness of the offence, the guilty plea, and the mental illness.
  • The appropriate weight to give general deterrence where a mental illness is linked to the offending.

Decision

The Court of Criminal Appeal granted leave to appeal and found error in the original sentence. The sentencing judge had proceeded on the assumption that the appellant's major depressive illness was not operative at the time of the offence. Fresh psychiatric evidence, specifically a further report from Dr Westmore obtained after the original sentencing, established that a genuine causal link existed between the depression and the commission of the offence.

Greg James J confirmed that where a mental illness is shown to have a real connection to the offending conduct, it is well accepted that less weight may be given to the factor of general deterrence. The Court relied on The Queen v Scognamiglio (1991) 56 A Crim R 81 for that principle. The sentencing court's failure to account for this link, in light of the fresh evidence, constituted a material error warranting intervention.

Notwithstanding the mental illness, the Court characterised the objective criminality as very high, placing the case at or near the worst class of its kind. The frenzied nature of the attack, the premeditation evidenced by the concealed knife, the attack in the presence of a young child, and the breach of an apprehended violence order were all highly aggravating. The Court considered that the case retained a strong need for general deterrence, except to the extent modified by the established mental illness.

A discount of approximately 15 per cent was applied to reflect the guilty plea, early confession, and contrition, though the Court noted the contrition was qualified. Balancing those factors, the Court reduced the head sentence from 16 years to 15 years and the non-parole period from 12 years to 11 years.

Orders Made

  • Appeal allowed.
  • Sentence of 16 years imprisonment quashed.
  • In lieu, the appellant sentenced to imprisonment for 15 years, commencing 24 February 1999 and expiring 23 February 2014.
  • Non-parole period of 11 years imposed, commencing 24 February 1999 and expiring 23 February 2010.

Key Takeaways

  • Where fresh psychiatric evidence establishes a causal link between a mental illness and the commission of an offence, a sentence founded on the absence of that link may constitute a material error warranting resentencing.
  • The principle from Scognamiglio was confirmed: where a mental illness is shown to have an operative connection to the offending, less weight is given to general deterrence in sentencing.
  • A guilty plea, early confession, and expressions of contrition attracted a sentencing discount of approximately 15 per cent, though the Court noted that contrition qualified by the offender's own account of his conduct may reduce the weight given to that factor.
  • Even where mental illness mitigates the weight of general deterrence, extremely high objective criminality can still justify a substantial custodial sentence. The Court of Criminal Appeal declined to reduce the sentence further given the near-fatal injuries, evidence of planning, and the serious breach of a protective order.
  • Fresh evidence obtained after an original sentence hearing can ground an appeal against sentence where it materially contradicts a factual premise upon which that sentence was based.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 25
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Sentencing Act 1989 (NSW)

Cases
- Thomson (2000) 49 NSWLR 383
- Bond (1990) 48 A Crim R 1
- Carrion [2000] NSWCCA 191
- Scognamiglio (1991) 56 A Crim R 81
- Elphick [2000] NSWSC 977
- Cheung (CCA, unreported, 11 December 1995)