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Court of Criminal Appeal 30 May 2008

Du Randt v R

[2008] NSWCCA 121

Fraud & dishonesty
CRIMINAL LAW

Citation: Du Randt v R [2008] NSWCCA 121
Court: New South Wales Court of Criminal Appeal
Date: 30 May 2008
Judge(s): Basten JA, Barr J, Buddin J

Background

The appellant was a 33-year-old woman who pleaded guilty in the District Court to dealing in money that was proceeds of crime, contrary to s 400.4(2) of the Criminal Code Act 1995 (Cth). The offending involved acting as a courier on three separate occasions between December 2005 and May 2006, transporting cash amounts totalling just under $250,000 that were connected to amphetamine importation and distribution networks. The appellant was not alleged to have been involved in the importation itself.

The District Court sentenced the appellant to three years and three months imprisonment, with a non-parole period of two years. A substantial subjective case was placed before the sentencing judge, including evidence of significant and longstanding mental health conditions.

The appellant sought leave to appeal to the Court of Criminal Appeal, arguing that the sentencing judge had failed to give adequate consideration to her mental health both at the time of the offending and in assessing the likely impact of imprisonment on her condition.

  • Whether the sentencing judge gave adequate consideration to the appellant's mental health as a factor reducing her moral culpability for the offences
  • Whether the sentencing judge adequately addressed the likelihood that a custodial sentence would weigh more heavily on the appellant than on a person in ordinary health
  • Whether, if appellable error was established, fresh psychiatric evidence received on appeal warranted a further reduction in the substituted sentence

Decision

Barr J (with whom Basten JA and Buddin J agreed) found that the sentencing judge had failed to give proper consideration to the evidence of the appellant's psychological ill-health. That evidence was relevant in two distinct ways: it bore on the appellant's moral culpability at the time of the offending, and it supported an inference that imprisonment would weigh more heavily on her than on a reasonably healthy person. The omission to address that second factor adequately amounted to appellable error.

Basten JA noted that although the additional psychiatric evidence obtained for the appeal hearing was not before the sentencing judge and therefore not relevant to identifying error in the original sentence, it was admissible in the Court's re-sentencing function once error had otherwise been established. That evidence, including reports from Dr John Roberts and Dr Allnutt, confirmed the appellant remained vulnerable to fluctuations in her mental state and had experienced deterioration during imprisonment.

On the substantive assessment, Barr J acknowledged a number of competing considerations: the large sums of money involved, the extended period of offending, and the fact that the appellant's own telephone conversations demonstrated awareness that she was acting wrongly. Nonetheless, the appellant's role was that of a courier, her mental illness had some bearing on her capacity to appreciate the nature of her conduct, she entered an early guilty plea, and she had prior good character. Taking the additional psychiatric evidence into account, the Court concluded a lesser sentence was warranted.

Orders Made

  • Leave to appeal granted
  • The sentence imposed by the District Court was quashed
  • A sentence of imprisonment of two years and six months was substituted, commencing 28 September 2007 and expiring 27 March 2010
  • The appellant directed to be released on 27 March 2009 on a Recognisance Release Order in the sum of $100

Key Takeaways

  • A sentencing court must expressly consider evidence that a custodial sentence will weigh more heavily on an offender due to mental illness; failure to do so constitutes appellable error.
  • The Court of Criminal Appeal confirmed that mental health evidence is relevant to sentencing on two distinct bases: it may reduce an offender's moral culpability, and it may demonstrate that imprisonment will be a more onerous burden than it would be for a person in ordinary health.
  • Fresh evidence of an appellant's deteriorating mental health in custody, not available at the original sentencing, is admissible in the Court of Criminal Appeal's re-sentencing function once appellable error has been separately established.
  • A courier role in a proceeds-of-crime offence, combined with an early guilty plea, prior good character, and genuine mental illness affecting the offender's appreciation of events, are all factors capable of reducing an otherwise significant custodial term.
  • Awareness of wrongdoing, even without full understanding of the precise legal character of the conduct, may limit the mitigating weight given to mental health factors, particularly where an offender was receiving treatment at the time of the offending.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 400.4(2)
- Crimes Act 1914 (Cth), ss 16A, 17A, 20BV
- Mental Health Act 2007 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Leach v R [2008] NSWCCA 73
- R v Verdins [2007] VSCA 102
- R v Israil [2002] NSWCCA 255