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Court of Criminal Appeal 20 June 2001

Regina v Harb

[2001] NSWCCA 249

Assault & violenceTheft & propertyPublic order & justice offences
SENTENCES MENTAL CONDITION EFFECT ON SENTENCES CORRECT APPROACH

Citation: Regina v Harb [2001] NSWCCA 249
Court: NSW Court of Criminal Appeal
Date: 20 June 2001
Judge(s): Howie J, Smart AJ, Mathews AJ

Background

The applicant was convicted after trial of two counts of robbery in company, following a home invasion in which three young victims were subjected to violence, threats, and the theft of property. The applicant and two co-offenders entered the victims' home, assaulted them, and searched the premises before leaving. He was identified partly because incriminating items were found at his mother's home.

The District Court sentenced the applicant to two concurrent terms of four years imprisonment, with a non-parole period of two years. The applicant had a documented psychiatric history, ultimately diagnosed as schizophrenia in 1999, as well as a history of significant polysubstance abuse dating from the early 1990s.

The applicant sought leave to appeal out of time, arguing the sentences were excessive and that the sentencing judge had failed to give sufficient weight to his mental condition as a mitigating factor.

  • Whether the sentences of four years imprisonment with a two-year non-parole period were excessive for two offences of robbery in company.
  • Whether the sentencing judge gave sufficient and correct weight to the applicant's psychiatric condition (schizophrenia) as a mitigating factor.
  • Whether the correct approach to mental illness in sentencing had been applied, including its effect on moral culpability and the relevance of general deterrence.

Decision

Smart AJ, with whom the other judges agreed, found that the sentencing judge had given anxious consideration to the applicant's mental condition. The judge had extended the period of supervision and rehabilitation and recognised the applicant's clear need for medication. To the extent the sentencing remarks might be read as limiting the relevance of mental illness solely to general deterrence, Smart AJ noted respectful disagreement with that approach, but was not satisfied that was what the judge in fact intended.

Smart AJ concluded that the sentences were lenient rather than excessive. Even on a fresh sentencing exercise, no lesser sentence would have been imposed. The gravity of the offences, combined with the applicant's entitlement to no discount for a plea of guilty or contrition, meant the sentencing judge must have given appropriate weight to the mental condition in arriving at those figures.

Howie J added that the leniency of the sentence was itself strong evidence that the applicant's mental disorder had been properly factored in, both as reducing his moral culpability and as diminishing the weight of general deterrence. He also rejected the submission that a comparison with the co-offender's sentence demonstrated insufficient mitigation: the co-offender's sentence was similarly lenient, and no greater discount for deterrence could have been applied there either.

Mathews AJ agreed with the orders and reasoning of Smart AJ.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing court must consider a mental condition across all relevant sentencing factors, not merely in the context of general deterrence. Limiting its relevance to deterrence alone would be an error in principle.
  • Where a sentencing court imposes a sentence that is, on its face, lenient relative to the objective seriousness of the offence, that leniency may itself demonstrate that appropriate weight was given to an offender's mental illness and reduced moral culpability.
  • The absence of a guilty plea and any contrition is a material consideration: an applicant who contested identification at trial and offered no plea is not entitled to a sentencing discount on those grounds, which bears on the overall assessment of mitigation.
  • In dismissing the appeal, the Court treated the concurrence of a lenient sentence with serious offending as indicative of the sentencing judge having properly accounted for the applicant's psychiatric history, rather than as a basis for further reduction.
  • No error was established by comparing the applicant's sentence with that of a co-offender where the co-offender's sentence was also lenient, since no greater downward adjustment for deterrence was available in either case.

Legislation and Cases Referenced

Cases cited:
- Wright (1997) 93 A Crim R 48
- R v Engert (1998) 84 A Crim R 67
- R v Mooney (unreported, CCA Victoria, 21 June 1978)
- R v Anderson (1980) 2 A Crim R 379
- R v Fahda [1999] NSWCCA 267

Legislation: No specific legislation was cited in the provided text.