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Court of Criminal Appeal 3 June 2002

Regina v Flavell

[2002] NSWCCA 220

Assault & violenceTheft & property
SEVERITY APPEAL

Citation: Regina v Flavell [2002] NSWCCA 220
Court: NSW Court of Criminal Appeal
Date: 3 June 2002
Judge(s): Greg James J; Carruthers AJ

Background

The applicant pleaded guilty in the Sydney District Court to two counts of aggravated break, enter and commit a felony under s 112(2) of the Crimes Act 1900, both involving being armed with an offensive weapon. The offences arose from a predawn attack on the home of his sister and brother-in-law, during which he smashed windows, forced entry, and attacked the male victim with a large carving knife. Both victims suffered psychological injuries diagnosed as post-traumatic stress disorder.

At sentencing in May 2001, Judge Finnane QC imposed a head sentence of six years and five months on the first count with a non-parole period of three years and six months, and a consecutive sentence on the second count with a non-parole period of two years. The applicant then sought leave to appeal to the Court of Criminal Appeal on the ground that the sentences were excessive.

The appeal centred on whether the sentencing judge had given sufficient weight to the applicant's mental disorder and its direct connection to the offending conduct.

  • Whether the original sentences were manifestly excessive in light of the applicant's diagnosed mental disorder
  • Whether a direct relationship existed between the applicant's mental disorder and the commission of the offences, such that general deterrence should carry reduced weight
  • Whether the non-parole periods set by the District Court adequately reflected the applicant's subjective circumstances and prospects for rehabilitation

Decision

Expert psychological evidence before the Court described the applicant as suffering from a characteristic personality disorder marked by an inability to trust relationships, erratic and unstable behaviour, and related difficulties. The Court accepted that there was a direct relationship between this mental disorder and the commission of the offences. On the night of the attack, the applicant had been in a highly disturbed state, had indicated suicidal intent, and had telephoned police before travelling to the victims' home.

The Court applied the established principle, drawn from R v Letteri and R v Engert, that where a direct link exists between a mental disorder and the offending, deterrence should be given relatively less weight. An offender whose conduct flows from a mental disorder is not an appropriate vehicle for general deterrence. This principle required a reduction in the non-parole periods, even though the underlying head sentence on the first count was considered appropriate given the seriousness of the offences.

The Court also noted that the applicant had engaged constructively with treatment during his period of incarceration, completing numerous rehabilitation courses and receiving medication and psychological support from Corrective Services. These factors further supported a reduction in the non-parole periods.

Orders Made

  • Leave to appeal granted; appeal allowed
  • First count: head sentence of six years and five months confirmed (from 5 December 1999); non-parole period reduced to two years and six months, expiring 4 June 2002; Form 1 offence taken into account on this count
  • Second count: sentence of two years and six months imposed, concurrent with the first count sentence, from 5 December 1999; no separate non-parole period fixed
  • Applicant eligible to apply for release to parole on 4 June 2002
  • Recommendation that upon release the applicant be supervised by the Probation and Parole Service and submit to psychiatric treatment as recommended by the treating psychiatrist

Key Takeaways

  • Where there is a direct relationship between an offender's mental disorder and the commission of the offence, general deterrence is a sentencing consideration that must be given reduced weight, because the offender is not an appropriate vehicle through which to deter others.
  • The Court of Criminal Appeal confirmed the principles in R v Letteri and R v Engert as applicable to severity appeals involving mental disorder.
  • A head sentence may be maintained as appropriate even where non-parole periods are reduced to reflect diminished culpability arising from mental illness.
  • Positive engagement with rehabilitation programmes and treatment during custody is a relevant consideration when assessing the appropriate non-parole period.
  • Serious objective criminality does not preclude a finding that a mental disorder significantly affected the offender's conduct and warrants moderation of the punitive components of a sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)

Cases
- R v Letteri (unreported, Court of Criminal Appeal, 18 March 1992)
- R v Engert (1998) 84 A Crim R 67