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Court of Criminal Appeal 24 November 2006

AYOUBI v REGINA

[2006] NSWCCA 364

Theft & property
SENTENCE APPEAL BREAK, ENTER AND STEAL OFFENCES

Citation: Ayoubi v Regina [2006] NSWCCA 364
Court: New South Wales Court of Criminal Appeal
Date: 24 November 2006
Judge(s): Giles JA, Sully J, Latham J

Background

The applicant pleaded guilty in the District Court to 12 counts of break, enter and steal, one count of break and enter with intent to steal, and one count of stealing and attempting to break out, with a further 14 offences taken into account on a Form One. The offences were committed between mid-2001 and early 2004 and involved the theft of computer equipment and other property from residential and commercial premises across multiple Sydney suburbs. The total value of property stolen across the indictment offences exceeded $88,000.

Sentencing proceeded on the basis that the applicant had suffered from significant psychiatric illness since a serious assault in 1999, with diagnoses including schizophrenia, major depressive disorder, and post-traumatic stress disorder. His Honour Sides QC DCJ took the mental illness into account and imposed an aggregate sentence of five years with a non-parole period of three years, with most counts running concurrently.

The applicant sought leave to appeal, contending that the sentencing judge had failed to properly account for his mental illness, particularly by not articulating the causal link between the illness and the offending and by not specifying the quantum of any sentencing reduction granted on that basis.

  • Whether the sentencing judge erred by failing to make a specific finding as to the causal connection between the applicant's mental illness and his offending behaviour.
  • Whether the sentencing judge was required to quantify or nominate a reduction in sentence attributable to the applicant's mental illness.
  • Whether the applicant should be permitted to adduce fresh psychiatric evidence on appeal that was not before the sentencing judge.
  • Whether the sentences imposed were manifestly excessive in light of the applicant's psychiatric condition.

Decision

The Court refused to receive fresh psychiatric evidence. The applicable principle requires that fresh evidence on a sentence appeal be admitted only to avoid a miscarriage of justice. The fresh material tendered on appeal did not establish any miscarriage; it largely addressed matters already placed before the sentencing judge and did not reveal any error in his Honour's approach.

On the principal ground of appeal, Latham J (with whom Giles JA and Sully J agreed) rejected the submission that the sentencing judge was obliged to articulate the precise causal link between the applicant's mental illness and his offending, or to quantify the reduction applied on that basis. The sentencing judge had expressly found that the applicant was suffering from mental illness at the time of the offences, reduced the sentences accordingly, and gave less weight to general deterrence. That was sufficient.

The Court confirmed that sentencing is an exercise in instinctive synthesis. There is no authority requiring a sentencing judge to nominate a specific numerical or proportional discount attributable to mental illness, and imposing such a requirement would be inconsistent with that approach. The applicant had already received the full discount for his early guilty pleas.

The Court also rejected the submission that the finding of "some planning" was inconsistent with the applicant's mental illness. The applicant had travelled from his home to multiple commercial premises in different suburbs, targeted particular items, and disposed of large quantities of goods. Those facts supported the inference that he retained the capacity for planning, regardless of his psychiatric condition. The aggregate sentence, given the number of concurrent sentences, was described as potentially lenient rather than excessive.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court is not required to identify a specific causal connection between an offender's mental illness and their offending conduct, nor to quantify the reduction in sentence granted on account of that illness.
  • Sentencing is an exercise in instinctive synthesis: Latham J confirmed that imposing an obligation to nominate a precise discount for mental illness would be contrary to that established approach.
  • Fresh evidence will not be received on a sentence appeal unless its admission is necessary to avoid a miscarriage of justice; material that does not demonstrate error in the original sentencing process will not meet that threshold.
  • A finding that an offender engaged in "some planning" is not rendered unavailable simply because the offender suffered from a diagnosed mental illness at the time of offending, where the surrounding facts support such an inference.
  • In dismissing the appeal, the Court of Criminal Appeal noted that the aggregate sentence, achieved through extensive concurrency across 14 counts, could itself be characterised as lenient.

Legislation and Cases Referenced

Cases:
- Benitez v R (2006) 160 A Crim R 166; [2006] NSWCCA 21
- R v Matthews [2004] NSWCCA 112
- R v Fordham (1997) 98 A Crim R 359

Legislation: No specific legislation was cited in the judgment text.