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Court of Criminal Appeal 18 April 2007

Clay v R

[2007] NSWCCA 106

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING

Citation: Clay v R [2007] NSWCCA 106
Court: NSW Court of Criminal Appeal
Date: 18 April 2007
Judge(s): McClellan CJ at CL, Howie J, Hall J

Background

The applicant pleaded guilty in the Local Court to robbery in company and assault occasioning actual bodily harm, arising from an incident in September 2005 in which he and a co-offender robbed three young men at machete-point and he physically assaulted one victim who had no money to hand over. He was also sentenced on three further matters taken into account on a Form 1 document (a procedural mechanism by which a court takes additional offences into account when passing sentence, without recording separate convictions), including two further robberies and a malicious damage offence against his disabled brother's vehicle.

The applicant had a documented history of psychiatric illness, including diagnoses of Post Traumatic Stress Disorder and Hypermania, and a history of substance abuse. By the time of the offences he had stopped taking his prescribed medication and had resumed heavy drug use, and he told a psychologist he had no recollection of the events due to the intensity of his drug taking and sleep deprivation.

In the District Court, Judge McLoughlin sentenced the applicant to a total non-parole period of 2 years and 3 months, with a balance of term of 2 years and 3 months, for the robbery offence. The applicant sought leave to appeal, arguing the sentencing judge gave insufficient weight to his mental illness and that the sentence was manifestly excessive.

  • Whether the sentencing judge gave insufficient weight to evidence of the applicant's mental illness as a mitigating factor
  • Whether the overall sentence was manifestly excessive, particularly when measured against the guideline judgment in R v Henry (1999) 46 NSWLR 346, which sets out a sentencing range for robbery in company offences

Decision

On the mental illness ground, the Court found that the sentencing judge had, in fact, addressed the applicant's mental health condition. The judge acknowledged the psychiatric history and reduced what he considered a starting sentence of six years to four and a half years partly on account of it. The Court found no error in that treatment.

The Court also noted the limits of the mitigating effect in this context. The applicant's mental condition was substantially self-induced through deliberate drug use and deliberate non-compliance with his medication regime. The Court acknowledged that mental illness can diminish moral culpability and reduce the weight given to general deterrence, but it does not operate as a free-standing basis for leniency where the offender has substantially contributed to the condition through voluntary conduct.

On the manifest excess ground, the Court was not persuaded the sentence was outside the appropriate range. The applicant's offending was, in several respects, more serious than the "typical" Henry guideline case: there were three robberies in total, a significant criminal record (including a prior custodial term), a gratuitous physical assault on a victim who had no money, and the Form 1 matters warranted some upward adjustment. The non-parole period was, in the Court's view, actually a lenient outcome: it represented only 50 per cent of the head sentence, reflecting a generous finding of special circumstances (a sentencing concept permitting a shorter non-parole period where rehabilitation needs are greater than usual).

Orders Made

  • Leave to appeal refused

Key Takeaways

  • Mental illness can reduce moral culpability and the weight given to general deterrence in sentencing, but where the condition is substantially attributable to voluntary drug use and deliberate non-compliance with medication, its mitigating effect is limited.
  • No error was established in the sentencing judge's treatment of the applicant's psychiatric history, where the judge demonstrably addressed that history and reduced the sentence accordingly.
  • A sentence below the midpoint of the Henry guideline range is not necessarily manifestly excessive simply because mental illness is present; other aggravating features can counterbalance that mitigation.
  • Leave to appeal was refused rather than granted with the appeal dismissed, specifically to preserve the applicant's ability to raise a parity argument if the recently sentenced co-offender received a materially different sentence. This procedural flexibility reflects the court's approach to avoiding a situation where a potentially meritorious disparity argument is foreclosed prematurely.
  • Under the Henry guideline framework, courts compare the individual offending against a benchmark that already incorporates a discount for a late guilty plea; an applicant who pleaded early is entitled to a greater discount, but the overall sentence must still reflect the full picture of aggravating features.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery in company), s 59(1) (assault occasioning actual bodily harm)
- Mental Health (Criminal Procedure) Act 1990 (NSW), s 32

Cases
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for robbery in company sentencing)
- R v Henry [2007] NSWCCA 90 (further consideration of the Henry guideline)
- R v Stanley [2003] NSWCCA 233
- Bailey v Director of Public Prosecutions (1988) 62 ALJR 319 (procedure where leave to appeal is refused rather than appeal dismissed)