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Court of Criminal Appeal 1 October 2004

Regina v GARNER

[2004] NSWCCA 343

Assault & violenceTheft & property

Citation: Regina v Garner [2004] NSWCCA 343
Court: NSW Court of Criminal Appeal
Date: 1 October 2004
Judge(s): Dunford J, Barr J, Hoeben J

Background

The applicant, a 21-year-old man, committed two armed robberies on the same day in March 2003, holding up shops in Manly and Cromer at knifepoint. He stole cash and cigarettes from each proprietor. Following the second robbery, he brandished the knife at members of the public who pursued him, giving rise to a further offence of using an offensive weapon to prevent lawful apprehension.

The applicant entered guilty pleas in the District Court. The sentencing judge, Gibson QC DCJ, imposed an aggregate sentence of three years with a non-parole period of eighteen months. The applicant sought leave to appeal, arguing the sentences were manifestly excessive and that the sentencing judge had failed to give adequate weight to expert psychiatric and psychological evidence.

At the time of the offences, the applicant had lost his savings through gambling, been expelled from the family home, and was without income. Expert reports indicated he was likely experiencing a psychotic episode at the time of the offending. He had no prior criminal history and expressed genuine remorse.

  • Whether the sentences imposed were manifestly excessive having regard to all the circumstances, including the applicant's psychiatric condition.
  • Whether the sentencing judge gave adequate weight to the psychiatric and psychological evidence tendered at sentencing.
  • Whether the applicant's mental illness was of a character that reduced or eliminated the relevance of general and personal deterrence as sentencing considerations.

Decision

The Court of Criminal Appeal granted leave to appeal but unanimously dismissed the appeal. Barr J, with whom Dunford J and Hoeben J agreed, found that the sentencing judge had not overlooked or misunderstood any relevant aspect of the expert opinions. Both experts acknowledged uncertainty in their diagnoses: the psychologist considered a hypomanic episode with psychotic features likely, while the psychiatrist favoured drug-induced early onset psychosis. Neither diagnosis was firmly established, and the judge treated the evidence appropriately within those limits.

The court accepted that mental illness can, in some cases, reduce or eliminate the weight given to deterrence in sentencing. However, it found the applicant did not fall into that category. Despite his distressed state, he had made deliberate and sequential decisions: researching how to obtain money, selecting target shops, equipping himself with a knife and gloves, concealing his distinctive green hair with a beanie, and then making a sustained effort to evade arrest after the second robbery. The court concluded his capacity for considered planning remained substantially intact.

The court also rejected the submission that the offences should be characterised as a "cry for help." While his depression and hopelessness were genuine mitigating factors, they operated alongside more conventional criminal motivations, including a pressing need for money. The sentences were assessed against the starting range identified in R v Henry for offences of this type (four to five years imprisonment), and the court found the effective sentence of three years appropriately reflected the mitigating factors, including the guilty plea, remorse, good character, and the applicant's illness.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that psychiatric evidence, even where it points to a likely psychotic episode, does not automatically reduce or eliminate the relevance of general and personal deterrence in sentencing.
  • A finding that an offender's mental illness diminishes the role of deterrence depends on the degree to which that illness impaired deliberate decision-making; where an offender engaged in systematic planning and sustained evasive conduct, that finding is less likely to be made.
  • The distinction between mental illness as a mitigating factor and mental illness as a basis for setting aside deterrence entirely turns on the facts of each case, including the nature and extent of the offender's capacity to make considered judgments at the time of offending.
  • No error was established in the sentencing judge's treatment of expert evidence where the experts themselves acknowledged diagnostic uncertainty and the judge engaged with the evidence within those acknowledged limits.
  • Under the framework in R v Henry (1999) 46 NSWLR 346, the starting range for armed robbery offences of this character is four to five years imprisonment, with mitigating factors capable of justifying a reduced sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Henry (1999) 46 NSWLR 346 (sentencing range for armed robbery)
- R v Wright (cited for the proposition that mental illness affects offenders in varying ways and its relevance to deterrence must be assessed case by case)