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Court of Criminal Appeal 20 July 2006

Rigby v Regina

[2006] NSWCCA 205

Sexual offences
CRIMINAL PRACTICE & PROCEDURE APPEAL AGAINST SENTENCE ADMISSIBILITY RELEVANCE OF MENTAL ILLNESS TO SENTENCE ISSUE OF DANGEROUSNESS SPECIAL CIRCUMSTANCES.

Citation: Rigby v Regina [2006] NSWCCA 205
Court: NSW Court of Criminal Appeal
Date: 20 July 2006
Judge(s): Studdert J, Kirby J, Johnson J

Background

The appellant was convicted after a jury trial in the District Court on four counts of sexual intercourse without consent, all arising from a violent attack on a young woman at a railway platform in the early hours of the morning. The offences involved physical force, repeated sexual acts, and conduct that caused the complainant significant distress and fear for her life. He was sentenced by Coolahan DCJ to concurrent terms of eight years imprisonment with a non-parole period of five years, backdated to 2 December 2002.

The appellant sought leave to appeal against sentence well outside the ordinary time limit. His sole ground was that the sentence proceedings had miscarried because fresh evidence, unavailable at the time of sentencing, established that he had been mentally ill at the time of the offences and at sentencing.

The fresh evidence consisted of psychiatric reports, obtained after sentencing, diagnosing the appellant with chronic paranoid schizophrenia. The condition had not been identified or treated at the time he was sentenced.

  • Whether an extension of time should be granted for the filing of the leave application
  • Whether the psychiatric evidence constituted admissible fresh evidence on the sentencing appeal
  • What relevance, if any, a diagnosis of mental illness at the time of the offences had to the appropriateness of the sentence
  • Whether the appellant posed a risk of danger to the community, and how that bore on any resentencing
  • Whether special circumstances existed to justify a non-parole period that departed from the ordinary statutory proportion

Decision

The Court granted the extension of time and leave to appeal. It accepted the psychiatric evidence as fresh evidence relevant to the sentencing exercise, finding that the appellant's mental illness at the time of the offences was a matter that ought to have been placed before the sentencing judge and that its absence caused a miscarriage in the sentencing proceedings.

On the question of dangerousness, the Court noted that neither psychiatrist who examined the appellant had characterised him as dangerous. It acknowledged that the medical reports were directed primarily at diagnosis and treatment rather than the specific question of future dangerousness. On the available material, including the appellant's prison classification and his response to treatment, the Court concluded that he did not, as a treated schizophrenic, represent an obvious danger to the community.

The Court found that the appropriate response to the mental illness finding was not to reduce the overall term of imprisonment. The offences were serious and had severe consequences for the victim. Rather, the adjustment should be made through the mechanism of special circumstances, reducing the non-parole period to reflect the appellant's reduced moral culpability and his need for support and supervision upon release.

Kirby J, with whom Studdert J and Johnson J agreed, held that the proper sentence on each count was eight years imprisonment with a non-parole period of four years, expiring on 1 December 2006. The Court observed that it would then be for the State Parole Authority to determine, on the evidence available at that time including medical evidence, whether the appellant should be released to parole with appropriate supervision.

Orders Made

  • Extension of time for filing the application for leave granted
  • Leave to appeal granted
  • Appeal allowed
  • The sentence of eight years imprisonment on each count confirmed
  • The non-parole period on each count quashed and replaced with a non-parole period of four years on each count, commencing 2 December 2002 and expiring 1 December 2006

Key Takeaways

  • Fresh psychiatric evidence establishing that an offender was mentally ill at the time of the offences and at sentencing can constitute admissible fresh evidence on a sentence appeal, and its absence from the original sentencing proceedings may constitute a miscarriage.
  • Reduced moral culpability arising from mental illness does not automatically require a reduction in the head sentence, particularly where the offences are serious and caused significant harm to the victim.
  • Where mental illness is established, the appropriate sentencing adjustment may lie in the non-parole period, through a finding of special circumstances, rather than in a reduction of the overall term.
  • The Court of Criminal Appeal treated the question of dangerousness as distinct from the question of moral culpability, and assessed it on the available material including prison classification and psychiatric opinion, even where those reports were not directed squarely at dangerousness.
  • Determining whether a mentally ill offender should be released at the end of a reduced non-parole period is a matter for the State Parole Authority, which can take into account current medical evidence at the time of that decision.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I
- Criminal Appeal Act 1912 (NSW)
- Mental Health Act 1990 (NSW)

Cases:
- R v Hemsley [2004] NSWCCA 228
- R v Henry (1999) 46 NSWLR 346
- R v Israil [2002] NSWCCA 255
- Anderson v R [1981] VR 155
- R v Lauritsen (2000) 114 A Crim R 333
- R v Pitt [2005] NSWCCA 304
- R v Kenneth William Bailey (1988) 35 A Crim R 458
- R v Ehrenburg (unreported, NSW CCA, 14 December 1990)
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Engert (1995) 84 A Crim R 67