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Court of Criminal Appeal 1 September 2004

Regina v Webb

[2004] NSWCCA 330

Also reported as (2004) 149 A Crim R 167
Theft & propertyFirearms & weapons
CRIMINAL LAW AND PROCEDURE SENTENCE MALICIOUS DAMAGE TO PROPERTY APPELLANT IN DRUG INDUCED PSYCHOSIS WOUNDED BY POLICE IN COURSE OF ARREST RELEVANCE OF EXTRA CURIAL PUNISHMENT

Citation: Regina v Webb [2004] NSWCCA 330
Court: NSW Court of Criminal Appeal
Date: 1 September 2004
Judge(s): Grove J, Simpson J, Shaw J

Background

The appellant pleaded guilty in the District Court to maliciously damaging property, possessing a prohibited firearm (a submachine gun), and possessing a prohibited weapon (handcuffs). The sentencing judge, Freeman DCJ, also took into account related offences involving an unregistered firearm, unsafe firearm storage, and possession of ammunition without a licence.

The offending occurred over a single chaotic episode in December 2001. The appellant, who had consumed amphetamines, spent much of a night destroying the interior of a house he shared with his then-girlfriend, wielding a samurai sword and using the submachine gun as a club to smash televisions, windows, tiles, and walls. He believed people were hiding inside the walls. When police arrived, they shot him five times during the arrest.

A psychiatrist concluded the appellant was most likely suffering drug-induced psychosis at the time. Freeman DCJ sentenced him to a total effective term of twenty months and nine days in custody, with the head sentence on the firearms count set at two years and eight months with a sixteen-month non-parole period.

  • Whether Freeman DCJ erred by failing to make a discrete allowance for the appellant's compliance with restrictive bail conditions
  • Whether his Honour made an insufficient allowance for the utilitarian value of the guilty pleas
  • Whether the sentences were, in all the circumstances, manifestly excessive

Decision

The Court of Criminal Appeal rejected all three grounds of appeal. On the question of bail conditions, the Court found that the conditions, while initially strict, had been progressively relaxed over time to allow the appellant to attend work at his father's business and receive visitors at home. The appellant's own characterisation of those conditions in his evidence was found to be inaccurate, and the Court was unpersuaded that his Honour had erred in declining to treat compliance as warranting a discrete sentencing reduction.

On the plea discount ground, the Court noted the procedural history was complex: the charges had passed through various stages, an acquittal had been directed on two counts, and the guilty pleas came only after a trial had commenced. In those circumstances, no error was identified in the utilitarian discount applied by the sentencing judge.

The Court also found no error in how Freeman DCJ assessed the mitigating effect of the drug-induced psychosis. The psychosis arose directly from the appellant's own heavy amphetamine use over the preceding four years. While the Court acknowledged the appellant had taken promising steps toward rehabilitation, including obtaining employment and ceasing drug use, those matters had been appropriately considered at first instance.

The Court was similarly unpersuaded that the fact of the appellant being shot five times by police during his arrest, characterised as extra-curial punishment (punishment suffered outside the formal court process), had been inadequately weighed. Overall, the sentences were held to fall within the sound exercise of judicial discretion.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • No error was established in the sentencing judge's failure to grant a discrete reduction for compliance with bail conditions where those conditions had been substantially relaxed over the relevant period.
  • A drug-induced psychosis arising from the offender's own sustained drug use carries reduced mitigating weight in sentencing; the Court of Criminal Appeal confirmed that this was a relevant consideration in assessing the nature of the mental state relied upon.
  • Extra-curial punishment, here the appellant being shot five times during arrest, is a recognised matter of mitigation, but its weight is a matter for the sentencing judge's discretion and does not automatically attract a specific or fixed discount.
  • In dismissing the appeal, the Court affirmed that a sentencing judge's exercise of discretion will not be disturbed on appeal unless it can be shown that the sentence fell outside a sound exercise of that discretion, or that some other sentence was warranted in law.
  • Promising post-offence rehabilitation, including employment and cessation of drug use, remains a relevant mitigating factor, but its presence does not require a different sentencing outcome where other factors weigh against leniency.

Legislation and Cases Referenced

Cases:
- R v Daetz [2003] NSWCCA 216
- R v Gotkas [2004] NSWCCA 296

Legislation:
No specific legislation was cited in the provided text, though the offences involved prohibited firearms and weapons under NSW law, with maximum penalties of five years (malicious damage) and fourteen years (prohibited firearm and prohibited weapon) imprisonment respectively.