Citation: R v Bushell [2001] NSWCCA 462
Court: New South Wales Court of Criminal Appeal
Date: 21 November 2001
Judge(s): Barr J, Adams J
Background
The appellant was convicted after trial in the District Court of one count of armed robbery under s 97(1) of the Crimes Act 1900. The offence arose from an incident on a suburban Sydney train in May 2000, where the appellant held a pair of scissors at his side and, in a manner that caused the complainant to feel threatened, obtained a single cigarette. He also asked for $5, accepted the complainant's denial, and walked away.
Gibson DCJ sentenced the appellant to three years and six months' imprisonment with a non-parole period of one year and six months, backdated to 23 October 2000. The sentence was delayed because the appellant failed to appear for sentencing after being granted bail, and had to be arrested and brought before the court.
On appeal, the appellant sought leave to challenge the sentence on several grounds, including the weight given to his psychiatric illness, the finding of a need for personal deterrence, the suggestion that a custodial sentence was required by authority, and manifest excess.
Legal Issues
- Whether the sentencing judge gave adequate weight to the appellant's psychiatric condition, including the principle that general deterrence carries reduced weight for offenders with mental disorders
- Whether the sentencing judge erred in finding a need for personal (specific) deterrence
- Whether the sentencing judge wrongly treated himself as bound by authority to impose a full-time custodial sentence, thereby fettering his sentencing discretion
- Whether the sentence was manifestly excessive by reference to the sentencing range in R v Henry (1999) 46 NSWLR 346
- Whether fresh psychiatric evidence, obtained after the original sentence, warranted the Court of Criminal Appeal intervening to reduce the sentence
Decision
The Court rejected the first four grounds of appeal. On the psychiatric illness ground, Barr J accepted that general deterrence ordinarily carries reduced weight for offenders with mental disorders, but found no error where there was no evidence the offence was committed during an episode of drug-induced psychosis and no significant intellectual deficit was established. The head sentence and non-parole period were, if anything, somewhat lower than might otherwise have been expected, indicating the sentencing judge had in fact accounted for the appellant's condition.
On personal deterrence, the Court found the ground unpersuasive. A pre-sentence report indicated the appellant did not take the offence seriously and minimised his involvement, which provided adequate foundation for the judge's view that a deterrent element was warranted. On the question of sentencing discretion, the Court read the judge's comment about being guided by authority not as a surrender of discretion, but as the expression of an independent conclusion that full-time custody was appropriate on the facts.
On manifest excess, the Court found R v Henry provided no useful comparison. The appellant had contested the charge at trial, forfeiting any discount for a guilty plea, and the facts differed materially from the Henry model. These grounds were dismissed.
The appeal ultimately succeeded on the basis of fresh psychiatric evidence from Dr Westmore, which was not before the sentencing judge. That evidence indicated the appellant was probably suffering from schizophrenia at the time of the offence, a condition likely explaining his unusual behaviour: not holding the scissors in a threatening manner, demanding only a cigarette, and walking away when told there was no money. Barr J found this evidence provided a probable explanation for the offending and justified reducing the sentence. Since the appellant had been in custody, he had received treatment for schizophrenia, completed programs, maintained good behaviour, and weaned himself off methadone. Adams J agreed.
Orders Made
- Leave to appeal against sentence granted
- Appeal allowed and original sentence quashed
- Appellant sentenced to imprisonment for two years, commencing 23 October 2000 and expiring 22 October 2002
- Non-parole period fixed to expire 23 November 2001
- A condition of parole required the appellant to report to the Wentworth Area Mental Health Service at Nepean Hospital within seven days of release and to accept the advice of that service regarding treatment and medication
Key Takeaways
- Fresh psychiatric evidence obtained after sentencing can constitute a proper basis for the Court of Criminal Appeal to intervene and reduce a sentence, where that evidence provides a probable explanation for the offending conduct.
- The principle that general deterrence carries reduced weight for offenders suffering from mental disorders does not operate automatically: the mental condition must be shown to have had some relevant connection to the offending, and the sentencing court must weigh all facts and circumstances before adjusting for it.
- A sentencing judge's statement that "the authorities" require a custodial term will not, without more, constitute an impermissible fettering of discretion where the statement is reasonably read as the judge's own independent conclusion arrived at after considering relevant authority.
- R v Henry (1999) 46 NSWLR 346 sets out a sentencing range intended only as a guide, not a binding rule, and its utility diminishes significantly where the facts of the case differ materially from the model described, including where the offender contested the charge at trial rather than pleading guilty.
- In structuring the revised sentence, the Court attached significance to rehabilitation steps taken during custody, including engagement with psychiatric treatment, completion of courses, and participation in a methadone program, and imposed a parole condition requiring ongoing mental health treatment.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(1) (armed robbery, maximum penalty 20 years' imprisonment)
Cases
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on sentencing ranges for armed robbery)