Citation: R v Hemsley [2004] NSWCCA 228
Court: NSW Court of Criminal Appeal
Date: 7 July 2004
Judges: Grove J, Dowd J, Sperling J
Background
The appellant was sentenced in the District Court to six years imprisonment, with a non-parole period of four years, after pleading guilty to offences involving threats with a syringe she claimed was infected with a disease. The threats were objectively serious, calculated to induce extreme fear of contagion, including fear of contracting HIV/AIDS.
At sentencing, a psychologist's report indicated the appellant was in urgent need of psychiatric treatment. The sentencing judge nonetheless placed significant weight on general deterrence and gave limited credit for the guilty plea, noting the appellant had been caught "virtually red-handed."
The appellant sought leave to appeal the sentence on multiple grounds, contending that the sentencing judge failed to properly account for her mental condition, gave insufficient weight to her plea of guilty, and incorrectly used the guideline judgment in R v Henry as a fixed standard rather than a benchmark.
Legal Issues
- Whether the sentencing judge gave adequate weight to the appellant's underlying psychiatric or mental health condition when incorporating general deterrence into the sentence
- Whether the "utilitarian" value of the guilty plea was properly assessed, independently of the strength of the Crown case
- Whether the sentencing judge misapplied the guideline judgment in R v Henry by treating it as a standard rather than a sentencing reference point
- Whether special circumstances existed to justify a departure from the statutory non-parole period formula under s 44 of the Crimes (Sentencing Procedure) Act 1999
Decision
The Court allowed the appeal on three of the four grounds. On the mental condition ground, all three judges agreed that the psychologist's conclusion that the appellant required urgent psychiatric care should not have been dismissed. Even without accepting any specific diagnosis, the evidence supported a finding that an underlying psychiatric condition of some significance existed. The sentencing judge was required to consider whether, in light of that condition, general deterrence should be included, excluded, or moderated in the sentence assessment.
On the guilty plea ground, the Court held that the utilitarian value of an early plea must be assessed independently of the strength of the Crown case. The fact that the appellant was caught "virtually red-handed" was not a valid basis for discounting the credit otherwise available for a guilty plea, except in narrow circumstances where it was the accused's own disclosures that gave rise to the Crown's case.
Regarding the use of Henry, Grove J found the sentencing judge had treated the guideline range as a starting point and then asked whether the case fell above or below it, rather than first assessing all objective and subjective factors and then checking the result against established sentencing patterns. That was an error in principle. The original sentence of six years was characterised as manifestly excessive given the factors that should have operated in the appellant's favour.
On the question of special circumstances and the non-parole period, there was no error below. However, the judges divided on the appropriate resentence. Grove J proposed a four-year head sentence; Sperling J (with whom Dowd J agreed) imposed three years, calculated by reference to the Henry guideline range with adjustments for criminal history, mental condition, and a ten per cent discount for the early plea. The majority sentence of three years with a two-year non-parole period prevailed.
Orders Made
- Leave to appeal against sentence granted
- Appeal allowed
- Original sentence quashed
- Appellant resentenced to three years imprisonment commencing 27 February 2003, with a non-parole period of two years commencing 27 February 2003 and expiring 26 February 2005
- Appellant to be released on parole at the end of the non-parole period
Key Takeaways
- Where expert evidence establishes that an offender requires urgent psychiatric or psychological treatment, a sentencing court must engage with that material and determine what weight, if any, the offender's mental condition should have on the role of general deterrence, rather than proceeding without consideration.
- The utilitarian value of a guilty plea must be assessed on its own terms. The strength of the Crown case is not generally a valid reason to reduce that discount, unless it was the accused's own disclosures that built the Crown case.
- A guideline judgment such as R v Henry operates as a reference point against which a fully assessed sentence is checked, not as a starting figure from which departures are then calculated. Using it as a standard inverts the proper sentencing methodology.
- Rehabilitation progress made in custody after sentencing can be taken into account by an appellate court conducting a resentencing exercise, even where the original sentencing judge expressed doubt about the offender's prospects.
- Under s 44 of the Crimes (Sentencing Procedure) Act 1999, the absence of special circumstances does not prevent a court from structuring the non-parole period so as to allow the Parole Board flexibility to respond to developments in an offender's mental health treatment.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Evidence Act 1995 (NSW), s 60, s 136
Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on armed robbery)
- R v Scognamiglio (1991) 56 A Crim R 81 (mental condition and general deterrence)
- Thomson & Houlton (2001) 49 NSWLR 383
- Ramsay v Watson (1961) 108 CLR 642
- R v Welsh (1996) 90 A Crim R 364
- R v Engert (1995) 84 A Crim R 67
- Pearce v R (NSWCCA, 1 November 1996, unreported)
- Pearson [2004] NSWCCA 129
- Lauritsen (2000) 114 A Crim R 333
- Tsiaras [1996] 1 VR 398
- Letteri (NSWCCA, 18 March 1992, unreported)
- Israil [2002] NSWCCA
- Jiminez [1999] NSWCCA 7