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Court of Criminal Appeal 12 September 2005

Welling v R

[2005] NSWCCA 318

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING OFFENCES OF ROBBERY AND ARMED ROBBERY YOUNG, MENTALLY ILL OFFENDER

Citation: [2005] NSWCCA 318
Court: NSW Court of Criminal Appeal
Date: 12 September 2005
Judges: McClellan CJ at CL, Simpson J, Howie J

Background

The applicant, a young man with schizophrenia who had been off his antipsychotic medication, committed three robberies on the NSW Central Coast in April 2004. Two offences involved threatening victims with a knife, and the third involved a confrontation with an elderly disabled woman in her car. The applicant told police he had no memory of the knife-point offences and attributed his behaviour to auditory hallucinations (he described hearing "goblins" telling him to "run amok"). He was arrested on 8 April 2004 and pleaded guilty to two counts of armed robbery and one count of robbery.

The District Court sentenced the applicant to an effective total term of eight years imprisonment with a minimum non-parole period of five years. The applicant sought leave to appeal, contending the sentences were manifestly excessive given the significant subjective factors, particularly his youth and his mental illness.

  • Whether the sentences imposed by the District Court were manifestly excessive having regard to the applicant's mental illness, youth, and other subjective considerations.
  • How the principles governing the sentencing of mentally ill offenders should be applied to the particular facts, including the causal connection between the mental illness and the offending.
  • Whether special circumstances existed justifying a departure from the standard non-parole period to balance of term ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999.

Decision

Howie J (with whom McClellan CJ at CL and Simpson J agreed) held that the sentences imposed by the District Court were manifestly excessive. The court acknowledged that sentencing mentally ill offenders for serious violent offences is a genuinely difficult exercise, and that while the applicable principles are well established, their application can lead to significantly different outcomes depending on the circumstances.

The court identified that the applicant's schizophrenia had a direct causal relationship to the offending. The crimes arose from his untreated illness, including the auditory hallucinations he described to police. Howie J noted that this causal link, combined with the applicant's youth and prospects of rehabilitation through ongoing treatment, substantially reduced the weight that would ordinarily be given to general deterrence and retribution.

Working back from the discounts the sentencing judge had applied, Howie J concluded the implied starting sentences were clearly excessive. For example, the fourth count appeared to imply a starting point of around eight years and nine months, which the court found could not be justified. The court resentenced the applicant to an effective total term of four years and six months with a minimum period of two years and nine months from 8 April 2004.

A condition was attached to the applicant's parole requiring him to comply with any prescribed treatment for his mental illness, reflecting the court's view that ongoing psychiatric management was central to any rehabilitation.

Orders Made

  • Leave to appeal granted and the appeal allowed.
  • All sentences imposed by English DCJ quashed.
  • Count 1 (armed robbery, 4 April 2004): fixed term of 20 months' imprisonment, commencing 8 April 2004 and expiring 7 December 2005.
  • Count 3 (robbery, 7 April 2004): fixed term of 15 months' imprisonment, commencing 8 April 2005 and expiring 7 July 2006.
  • Count 4 (armed robbery, 7 April 2004): non-parole period of 12 months commencing 8 January 2006 and expiring 7 January 2007, followed by a balance of term of 21 months commencing 8 January 2007; parole to be subject to a condition of compliance with prescribed mental health treatment.

Key Takeaways

  • The Court of Criminal Appeal confirmed that sentencing a young, mentally ill offender requires careful individual assessment of the causal relationship between the mental illness and the offending, with that causal link capable of substantially reducing the weight given to general deterrence.
  • Where a sentencing court's implied starting sentence (derived by reversing the discount applied for a guilty plea) appears disproportionate to the objective and subjective circumstances, that can support a finding of manifest excess on appeal.
  • A condition requiring compliance with mental health treatment can be attached to parole, reflecting the court's recognition that rehabilitation may depend directly on sustained psychiatric care.
  • Concurrent sentences are not automatically appropriate simply because multiple offences were caused by the same mental illness or occurred on the same day; the distinct criminality of each offence must be separately addressed.
  • Special circumstances justifying a more generous balance of term (that is, a longer period after release on parole) can be established where an offender's mental illness creates a heightened need for post-release supervision and support.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 94, 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(1)(c), 21A(3), 21A(3)(g), (h) and (j), 44
- Mental Health Act 1990 (NSW)

Cases:
- R v Way (2004) 60 NSWLR 168
- R v Henry (1999) 46 NSWLR 346
- R v Engert (1985) 84 A Crim R 67