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Court of Criminal Appeal 7 June 2005

Regina v Wicks

[2005] NSWCCA 213

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE CROWN APPEAL WHETHER TOTAL SENTENCE AND NON MENTAL ILLNESS OF CHRONIC SCHIZOPHRENIA

Citation: Regina v Wicks [2005] NSWCCA 213
Court: New South Wales Court of Criminal Appeal
Date: 7 June 2005
Judges: Studdert J, James J, Howie J

Background

The respondent pleaded guilty in the District Court at Armidale to robbery whilst armed with an offensive weapon. On 6 May 2004, she entered a store, threatened a staff member with a knife, grabbed their wrist causing bruising, and left with $1,340 in cash. She was arrested shortly after and made full admissions to police, assisting officers in recovering both the stolen money and the knife.

At sentencing, Judge Coorey received psychiatric evidence establishing that the respondent suffered from chronic schizophrenia. She had experienced auditory hallucinations at the time of the offence and told police the voices had commanded her to commit the robbery or they would kill her. A forensic psychiatrist confirmed her mental illness had impaired her judgment and capacity to control her actions, though she retained knowledge of right and wrong.

Judge Coorey imposed a total sentence of three years imprisonment with a non-parole period of approximately eight months and twenty-eight days, commencing from the date of arrest. The respondent was released on parole on the day of sentencing, having by then served the non-parole period in custody. The Crown appealed, contending the total sentence and the non-parole period were manifestly inadequate.

  • Whether the total sentence of three years for armed robbery was manifestly inadequate.
  • Whether the non-parole period of approximately nine months was manifestly inadequate.
  • Whether the sentencing judge gave appropriate weight to the respondent's mental illness of chronic schizophrenia as a mitigating factor.
  • Whether the sentencing judge failed to adequately account for general deterrence and the possibility of future dangerousness.

Decision

The Court of Criminal Appeal unanimously dismissed the Crown appeal. James J, delivering the leading judgment, accepted that the sentencing judge had correctly identified and applied the relevant principles governing the intersection of mental illness and sentencing. The respondent's chronic schizophrenia was found to have materially contributed to the offence, reduced her moral culpability, made her a less appropriate vehicle for general deterrence, and caused custody to weigh more heavily upon her than it would on a person without mental illness.

On the question of the total sentence, the Court found that three years was within the permissible range of the sentencing discretion given the respondent's circumstances, including her significant mental illness, her lack of any prior history of violence, her early guilty plea, her cooperation with police, and her recovery of the stolen funds. The Court was satisfied that no error had been demonstrated in the overall sentencing exercise.

The non-parole period was described as low, and the Court acknowledged it was "more questionable" whether it fell within the permissible range. However, taking into account the evidence that the respondent could reside with her step-father upon release and access ongoing psychiatric treatment from her treating psychiatrist, the Court found the non-parole period was not outside the permissible range. The Court added that even if it had been, the respondent had by the time of the appeal served over a year in custody in total, and the Court's broad discretion in Crown appeals militated against intervention in those circumstances.

Orders Made

  • The Crown appeal was dismissed.

Key Takeaways

  • Chronic schizophrenia that materially contributes to the commission of an offence is a significant mitigating factor capable of justifying a sentence below what would otherwise be expected for armed robbery.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that mental illness can simultaneously reduce an offender's moral culpability, diminish the weight given to general deterrence, and increase the burden that a custodial sentence places on the offender.
  • A finding by the sentencing judge that an offender with mental illness is unlikely to reoffend, where supported by evidence, is a factual determination that an appellate court will not readily disturb.
  • The Court reaffirmed that it retains a wide discretion in Crown appeals and may decline to intervene even where a non-parole period is at the low end of the permissible range, particularly where additional time served since sentencing would make intervention disproportionate.
  • Special circumstances justifying an extended parole period were accepted without contest where the evidence showed the offender required ongoing psychiatric treatment and had a viable support arrangement in the community.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW)
- Criminal Appeal Act (NSW)
- Mental Health Act (NSW)

Cases:
- R v Hemsley [2004] NSWCCA 228
- R v Henry (1999) 46 NSWLR 346
- R v Mills [2005] NSWCCA 175
- R v Wall [2002] NSWCCA 42