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Court of Criminal Appeal 8 November 2006

Doolan v R

[2006] NSWCCA 344

Assault & violenceTheft & property
CRIMINAL LAW: ROBBERY IN COMPANY

Citation: Doolan v R [2006] NSWCCA 344
Court: New South Wales Court of Criminal Appeal
Date: 8 November 2006
Judge(s): McClellan CJ at CL; Hidden J; Hall J

Background

The applicant pleaded guilty in the District Court to robbery in company under s 97(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years imprisonment. The offence involved a violent assault on a 29-year-old woman in Waterloo in March 2005, in which the applicant and a co-offender punched the victim repeatedly, causing lacerations and grazes, and stole beer and jewellery. The co-offender was the primary aggressor, biting the victim's ear and slamming her head to the ground.

The applicant was sentenced to four and a half years imprisonment, with a non-parole period of two and a half years and a balance of term of two years, commencing on the date of the offence and arrest. Her co-offender received a longer sentence of six years with a non-parole period of three and a half years, reflecting her greater culpability and a further offence taken into account.

The applicant sought leave to appeal, arguing that the sentencing judge had not given adequate weight to her significant mental illness and its causal role in the offending.

  • Whether the sentencing judge gave adequate weight to the applicant's mental illness, specifically a longstanding diagnosis of schizophrenia and the likelihood she was experiencing command hallucinations at the time of the offence.
  • Whether the sentence was within the appropriate range having regard to her subjective circumstances and the degree of differentiation from her co-offender's sentence.
  • Whether an error in sentencing was demonstrated sufficient to warrant appellate intervention.

Decision

The Court granted leave to appeal but dismissed the appeal by majority, with Hidden J dissenting on the outcome. McClellan CJ at CL and Hall J both found that no appellate error had been established that required the Court to intervene.

The applicant's subjective case was significant. A forensic psychiatrist concluded it was very likely the applicant was responding to command hallucinations at the time of the offence, consistent with untreated schizophrenia. Her history also included a low IQ of 78, a tragic personal background marked by loss and family dysfunction, and a long history of substance abuse compounding her psychiatric condition.

McClellan CJ at CL accepted that a lesser sentence might have been available, but held that the question for the Court of Criminal Appeal was whether a sentencing error had occurred requiring intervention. His Honour was satisfied it had not. The serious and violent nature of the offence required a sentence marking its gravity, and the non-parole period of two and a half years with a two-year balance of term fell within the appropriate range. The guideline in R v Henry remained of considerable significance even where an offender suffers psychiatric illness.

Hall J agreed, finding that the sentencing judge had conducted a detailed and appropriate analysis of the medical evidence and had not failed to properly evaluate those matters when arriving at the sentence. His Honour concluded that the sentence was within the range appropriate for the case, having regard to both the applicant's mental state and the sentence imposed on the co-offender.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed (by majority).

Key Takeaways

  • The Court of Criminal Appeal confirmed that the applicable question on a sentence appeal is not whether a different sentence could have been imposed, but whether an error requiring intervention has been demonstrated.
  • A diagnosed psychiatric condition, including schizophrenia with command hallucinations at the time of the offence, is a relevant and weighty sentencing factor but does not necessarily displace the significance of guideline judgments such as R v Henry for serious violent offences.
  • In dismissing the appeal, the majority held that the sentencing judge's detailed engagement with the psychiatric evidence did not reveal a failure to properly evaluate that material in arriving at the sentence.
  • Where a sentencing judge makes explicit findings on an offender's mental state and appropriately distinguishes the offender's culpability from that of a co-offender, the absence of a larger differential in sentence does not of itself establish error.
  • No error was established despite the applicant's compelling subjective circumstances, including her schizophrenia, low IQ, tragic personal history, and the co-offender's greater degree of physical aggression during the robbery.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company, maximum 20 years imprisonment)

Cases:
- R v Henry [1999] NSWCCA 107 (guideline judgment for robbery offences)
- R v Hemsley [2004] NSWCCA 228