Citation: Wilmot v Regina [2007] NSWCCA 278
Court: New South Wales Court of Criminal Appeal
Date: 28 September 2007
Judges: Santow JA, Hidden J, Howie J
Background
The appellant had pleaded guilty in the District Court to two serious offences: maliciously wounding a man with intent to cause grievous bodily harm, and using an offensive weapon (a tomahawk) with intent to prevent lawful apprehension. The victim of the wounding was the new husband of the appellant's former wife. The appellant had followed him to his workplace wearing a ski mask and goggles and armed with two knives, stabbed him multiple times, and then fled. When police later caught up with him, he brandished the tomahawk and told them they would have to shoot him rather than arrest him.
The victim sustained several stab wounds, including one that punctured his lung and fractured a rib. He was discharged from hospital about a week later, but the wounds to his right hand left him with permanent loss of strength and sensation.
In the District Court, the sentencing judge imposed a fixed term of three years for the weapons offence and eleven years (with a non-parole period of seven years) for the wounding offence. The appellant sought leave to appeal, arguing that the sentencing judge had failed to give adequate weight to his mental illness and had wrongly excluded certain disputed facts.
Legal Issues
- Whether the sentencing judge erred by failing to find a sufficient connection between the appellant's mental illness and the commission of the offences
- Whether the sentencing judge erred by rejecting, or failing to take into account, an assertion by the appellant that he had been assaulted while in custody prior to sentencing
- Whether the expert psychiatric evidence was adequate to establish that the appellant's mental illness played a direct role in his offending
Decision
The Court of Criminal Appeal found no error in the sentencing judge's approach. Although the appellant was diagnosed with a psychotic illness (variously described as paranoid psychosis, paranoid personality disorder, and schizophrenia) shortly after entering custody, the question of whether that illness influenced the commission of the offences required proper expert evidence, not merely the fact of diagnosis.
The forensic psychiatrist, Dr Westmore, had provided a supplementary report stating that the appellant "was likely mentally ill at the time of the offending" and that his illness "probably played an immediate or direct role." However, the Court found this was a bare assertion without elaboration or supporting reasoning. Applying the principles in Makita (Australia) Pty Ltd v Sprowles, such an unexplained assertion was insufficient to establish the link, and it was open to the sentencing judge to find the connection unproven.
On the second ground, the appellant had raised, for the first time on appeal, a claim that he had been assaulted in custody before sentencing. The Court noted this assertion had not appeared in his police interview, in any of Dr Westmore's reports, in his father's evidence, or in the sentencing judge's remarks. There was no material capable of establishing whether the claim had any factual basis or whether it reflected a delusional belief. No weight could be placed on it.
The Court acknowledged the overall sentences were severe but noted the criminality of both offences was of a high order, with the wounding offence further aggravated by the existence of an apprehended violence order against the same victim at the time.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A bare assertion by a forensic psychiatrist that mental illness "probably" played a role in offending is insufficient, without elaboration or reasoned basis, to establish the requisite causal connection at sentencing: Makita principles apply to expert evidence in criminal sentencing proceedings.
- The existence of a diagnosed psychiatric condition, even one of apparent long standing and discovered shortly after arrest, does not of itself establish that the illness influenced the commission of the offences.
- Factual matters not raised at first instance, and unsupported by any expert or other evidence, will carry little or no weight on appeal.
- In dismissing the appeal, the Court confirmed that the existence of an apprehended violence order against the same victim is a recognised aggravating factor in sentencing for serious assault offences, consistent with R v Edigarov.
- The Court of Criminal Appeal did not disturb the sentences despite acknowledging their severity, given the level of premeditation, the planning involved, and the serious injuries inflicted.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 33, 33B
Cases
- R v Engert (1995) 84 A Crim R 67
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
- R v Edigarov (2001) 125 A Crim R 551