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11
Court of Criminal Appeal 2 April 2007

R v Henry

[2007] NSWCCA 90

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCING CROWN APPEAL ROBBERY WITH WOUNDING MENTALLY DISORDERED OFFENDER PAROLE

Citation: R v Henry [2007] NSWCCA 90
Court: NSW Court of Criminal Appeal
Date: 2 April 2007
Judge(s): Simpson J, Howie J, Hislop J

Background

The respondent pleaded guilty in the District Court to one count of armed robbery with wounding under s 98 of the Crimes Act 1900, which carries a maximum penalty of 25 years imprisonment and a standard non-parole period of seven years. The offence involved the respondent entering a jewellery store while on parole for a previous armed robbery, threatening the owner with a knife, and stabbing him in the face. The victim required stitches but physically recovered.

The respondent had a lengthy criminal history and significant mental health issues, including a diagnosis of chronic schizophrenia, post-hypoxic brain damage, and substance dependence. He had stopped taking prescribed medication and was using illicit drugs at the time of the offence.

Ashford DCJ sentenced the respondent to a non-parole period of three years with a balance of term of one year. The Crown appealed, contending that the sentence was manifestly inadequate.

  • Whether the sentence imposed by the District Court was manifestly inadequate for an offence of armed robbery with wounding
  • The proper relationship between the Henry guideline judgment (for armed robbery) and the statutory standard non-parole period applicable to the offence
  • The relevance and weight of mental illness and cognitive impairment in sentencing, particularly regarding general deterrence and moral culpability
  • Whether special circumstances were properly identified and applied to adjust the non-parole period

Decision

The Court of Criminal Appeal allowed the Crown appeal, finding the original sentence manifestly inadequate. Howie J (with Simpson and Hislop JJ agreeing) held that the sentencing judge had departed too significantly from the standard non-parole period of seven years without adequate justification. While the respondent's guilty plea and mental health condition warranted some departure from that baseline, the extent of the reduction was not supportable on the facts as found.

On the relevance of mental illness, the Court acknowledged that reduced moral culpability flowing from a mental disorder can justify giving less weight to general deterrence in sentencing. However, the psychiatrist's own evidence indicated that the offence was not directly caused by any mental illness. The Court accepted that the respondent's conditions increased his impulsivity and propensity to act aggressively, but this did not amount to a basis for the substantial reduction that had been applied.

Howie J also observed that, even accepting the sentencing judge's findings in their entirety (including findings he indicated he would not personally have made), the resulting sentence remained manifestly inadequate. He noted the offence involved actual violence, planning, and commission while on parole for a similar offence, all of which were aggravating features. The respondent was given the benefit of the special circumstances finding and the double jeopardy principle applicable to Crown appeals, both of which moderated the replacement sentence.

On the backdating issue, the Court declined to interfere with the original commencement date, notwithstanding that the sentencing judge appeared not to have turned her mind to whether backdating was appropriate. Given the sentence was already being substantially increased on Crown appeal, it was not considered appropriate to compound the respondent's position further.

Orders Made

  • The Crown appeal is allowed
  • The sentence imposed by Ashford DCJ for armed robbery with wounding is quashed
  • In lieu, the respondent is sentenced to a non-parole period of 4 years 6 months with a balance of term of 2 years 3 months, commencing 22 August 2005
  • The respondent is eligible for release to parole on 21 February 2010

Key Takeaways

  • A sentencing court must identify adequate justification to depart from the standard non-parole period, and a combination of factors, such as a guilty plea and mental illness, does not automatically support a very substantial reduction, particularly where the offence is serious and involves planned violence.
  • Where a psychiatric diagnosis establishes reduced moral culpability, it may diminish the weight given to general deterrence; however, this effect is limited where the evidence also indicates the offence was not directly caused by the mental illness.
  • The Court of Criminal Appeal confirmed that the Henry guideline judgment for armed robbery and the statutory standard non-parole period operate together in sentencing, with the standard non-parole period providing the legislative baseline from which departures require specific reasoning.
  • In Crown appeals, the double jeopardy principle operates to moderate any replacement sentence, reflecting that the respondent faces re-sentencing after having already been sentenced once.
  • Special circumstances findings under the Crimes (Sentencing Procedure) Act 1999 must be given practical effect in the sentence structure; the Court noted that the original non-parole period was in fact 75 per cent of the total term, meaning the special circumstances finding had not actually been applied.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97, 98
- Criminal Procedure Act 1987 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(j), 54B(4), 58

Cases:
- R v Henry (1999) 46 NSWLR 346 (the guideline judgment)
- Marshall v R [2007] NSWCCA 24
- Callaghan v R [2006] NSWCCA 58
- R v Wall [2002] NSWCCA 42
- R v Engert (1995) 84 A Crim R 67
- R v Israil [2002] NSWCCA 255