Citation: Turner v Regina [2006] NSWCCA 166
Court: NSW Court of Criminal Appeal
Date: 24 May 2006
Judge(s): McClellan CJ at CL, Hislop J, Johnson J
Background
The appellant had pleaded guilty in the District Court to breaking and entering a dwelling house and committing a serious indictable offence (assault occasioning actual bodily harm) contrary to s 112(1) of the Crimes Act 1900. The maximum penalty for that offence is 14 years imprisonment.
The facts were serious. The appellant had forced his way into the home of a woman who had previously permitted him to stay there. He threatened to kill her, knocked a phone from her hand, punched her, and bit her on the face. A 16-year-old neighbour was also present and fled to the bathroom. The victim's injuries included a cut to her nose and a bite mark above her lip, and she remained fearful of the appellant after the incident.
The District Court sentenced the appellant to a total term of two years imprisonment with an 18-month non-parole period, commencing 5 September 2005. He sought leave to appeal to the Court of Criminal Appeal on three grounds.
Legal Issues
- Whether the sentencing judge erred by failing to account for the effect of cumulation (the stacking of sentences) when fixing the non-parole period
- Whether the sentencing judge gave insufficient weight to the appellant's mental illness
- Whether the sentence was manifestly excessive
Decision
On the cumulation ground, the Court found no error. The sentencing judge had been aware that the appellant was already serving a prior sentence, and the new sentence was backdated to begin on the date that prior sentence ended. There was no demonstrated failure to take the cumulative effect into account when setting the non-parole period.
On the mental illness ground, the Court noted that the psychiatric material before the sentencing judge was significantly out of date. The most recent report was from 2002, and the appellant had elected to proceed at the sentencing hearing without a current psychiatric assessment. Despite this limitation, the sentencing judge expressly acknowledged that mental illness can reduce the weight given to general and specific deterrence (the goals of discouraging both the offender and others from reoffending). His Honour reduced the sentence considerably below what he would otherwise have imposed, in direct recognition of the appellant's psychiatric history.
The Court also rejected the argument that the appellant's incarceration would adversely affect his mental health. The only evidence on that point related to difficulties experienced years earlier at another correctional facility, and there was no evidence of similar problems arising from the current imprisonment. The appellant's mother's evidence suggested his condition had improved while in custody.
On manifest excess, the Court found that the sentence was not such as to warrant a more lenient outcome. All three grounds failed and the appeal was dismissed.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A sentencing judge's failure to mention cumulation expressly does not necessarily constitute an error, provided the record shows the judge was aware of the concurrent or consecutive sentencing context.
- Where an offender elects to proceed to sentencing without current psychiatric evidence, the sentencing court is not obliged to speculate about the contribution of mental illness to the offending beyond what the available material supports.
- The Court of Criminal Appeal confirmed that mental illness can bear on the weight given to deterrence as a sentencing purpose, but the degree of weight depends on the quality and currency of the psychiatric evidence placed before the court.
- No error was established merely because a sentencing judge took mental illness into account and still imposed a substantial sentence; the question is whether the judge actually engaged with the issue, not whether the outcome was lenient.
- In dismissing the appeal, the Court affirmed that a sentence is manifestly excessive only if it calls for a more lenient outcome as a matter of law, not simply because the result might seem harsh on the face of the subjective factors.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(1) (break, enter and commit serious indictable offence; maximum 14 years imprisonment)
Cases cited: No cases were identified in the provided text of the judgment.