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Court of Criminal Appeal 30 August 2004

REGINA v HAINES

[2004] NSWCCA 295

Sexual offences
SENTENCE APPEAL SEXUAL ASSAULT RELEVANCE EFFECT ON SENTENCE

Citation: Regina v Haines [2004] NSWCCA 295
Court: NSW Court of Criminal Appeal
Date: 30 August 2004
Judges: Sheller JA, Sperling J, Adams J

Background

The applicant, an Aboriginal man aged 25 at the time of sentencing, pleaded guilty to aggravated sexual assault under s 61J of the Crimes Act 1900. The offence occurred in October 2002 in Chippendale, Sydney, where the applicant dragged a woman into a side lane, knocked her unconscious, and sexually assaulted her. The maximum penalty for the offence was 20 years' imprisonment.

The applicant had a significant criminal history beginning at age 15, and had been released from prison only one week before committing the offence. He had come to the attention of Corrections Health Services for psychiatric reasons during earlier periods of custody and had been prescribed antipsychotic medication shortly before his release. However, the authorities did not provide him with medication or a referral to mental health services upon release.

A psychiatrist, Dr Olav Nielssen, assessed the applicant and concluded that the offence was probably the result of a combination of intoxication (cannabis, alcohol, sedating drugs and Rohypnol) and underlying psychiatric disorders, namely schizophrenia and frontal lobe damage. The applicant was sentenced in the District Court to six years' imprisonment with a non-parole period of four years. He sought leave to appeal that sentence.

  • Whether the sentencing judge adequately treated the applicant's mental abnormality (falling short of full psychiatric disease defence) as a mitigating factor affecting moral culpability.
  • Whether the failure of authorities to provide the applicant with medication upon release from custody was a relevant sentencing consideration.
  • Whether the sentence of six years with a four-year non-parole period was within the appropriate range given all relevant factors, including mental illness, intoxication, criminal history, and the need to protect the public.

Decision

Adams J (with Sheller JA and Sperling J agreeing) acknowledged that the applicant's mental state went further than merely providing an explanation for the offence. The combination of schizophrenia and frontal lobe impairment, which adversely affected impulse control, social judgment and emotional regulation, significantly mitigated the applicant's moral culpability. The court noted that this could not in justice be treated as the applicant's fault.

The court also accepted that the state's failure to provide the applicant with medication or mental health follow-up upon release was not irrelevant to sentencing. While this could not excuse the offending, the court observed that there is something contrary to ordinary notions of justice in heavily punishing a person for acts for which the state bears some responsibility. The court noted that where sentencing requirements could be met by a sentence at the lower end of the appropriate range, this factor could appropriately be placed in the balance.

However, the court found that the need to protect the public weighed against a sentence at the lower end. The applicant had now committed a serious sexual offence, and that fact required substantial weight. The court also noted that poor prognosis and limited living skills, in the circumstances, militated in favour of a somewhat longer sentence within the appropriate range.

Adams J concluded that the various relevant factors, including those argued on the appeal, were appropriately reflected in the sentence below. No error in the sentencing exercise was established.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Mental abnormality falling short of a complete psychiatric defence is a significant mitigating factor that bears directly on an offender's moral culpability, not merely a partial explanation for the offending conduct.
  • Where frontal lobe damage impairs impulse control and social judgment, personal deterrence is of reduced relevance as a sentencing consideration.
  • A state authority's failure to provide known-necessary psychiatric medication and support upon an offender's release from custody is a relevant sentencing consideration, capable of supporting a sentence towards the lower end of an appropriate range.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that public protection remains a weighty factor and can justify a sentence above the minimum of the appropriate range, even where the offender has no prior convictions of a similar character.
  • No error was established in the District Court's sentence of six years with a four-year non-parole period, as it adequately balanced the mitigating psychiatric factors against the seriousness of the offence and the need to protect the public.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J (aggravated sexual assault)

Cases:
- R v Hemsley [2004] NSWCCA 228