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Court of Criminal Appeal 12 June 2008

Barnes v R

[2008] NSWCCA 136

Assault & violenceTheft & property
SENTENCING PSYCHIATRIC ILLNESS ACCUMULATION BROAD JUDICIAL DISCRETION

Citation: Barnes v R [2008] NSWCCA 136
Court: NSW Court of Criminal Appeal
Date: 12 June 2008
Judge(s): Spigelman CJ, Price J, McCallum J

Background

The appellant pleaded guilty in the District Court to two serious offences: breaking and entering a dwelling house in circumstances of special aggravation, and armed robbery. Both offences carried a maximum penalty of 20 years' imprisonment. The offences occurred approximately three months apart, and the second offence was committed while the appellant was on bail for the first.

The first offence involved the appellant entering a former housemate's new residence armed with a metal replica pistol, physically assaulting the victim, and threatening to shoot him in an attempt to recover property. The second offence involved the appellant and a co-offender confronting a 15-year-old on a bicycle, forcing him to the ground, and placing a knife blade against his throat until he surrendered the bike.

At the sentencing hearing, psychiatric evidence established that the appellant suffered from paranoid schizophrenia and poly-substance abuse. The sentencing judge (Coolahan DCJ) imposed partially accumulated sentences totalling five and a half years, with a non-parole period of three years. The appellant sought leave to appeal.

  • Whether the sentencing judge gave insufficient weight to the appellant's psychiatric illness in assessing general and specific deterrence
  • Whether the sentencing judge erred in choosing to accumulate the sentences, given the psychiatric evidence
  • Whether the total sentence was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all grounds. McCallum J (with whom Spigelman CJ and Price J agreed) found that the sentencing judge had engaged with the psychiatric evidence at length and had applied the relevant principle that a serious psychiatric condition reduces the weight to be given to deterrence as a sentencing objective.

On the question of deterrence, the court found no error in the sentencing judge's approach. The psychiatric diagnosis was a relevant mitigating factor, but it did not eliminate the role of deterrence entirely, particularly given the seriousness of both offences. The court found the judge had appropriately balanced the competing considerations.

On accumulation, the court emphasised the broad judicial discretion involved in that exercise. The two offences were entirely separate in character and separated in time by three months. The second offence was committed on bail. The court accepted the Crown's submission that failing to accumulate the sentences at all would have been inconsistent with the totality principle as stated by the High Court in Pearce v the Queen. Notably, counsel for the appellant had conceded at the original sentencing hearing that some accumulation was appropriate.

The court observed that the manifestly excessive ground added nothing to the arguments already addressed under the other grounds. The sentences fell within the appropriate range, despite the court expressing genuine sympathy for the appellant's personal circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A diagnosis of serious psychiatric illness reduces, but does not eliminate, the weight to be given to general and specific deterrence in sentencing. The court confirmed this principle applied but found no error in how it was applied at first instance.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that the exercise of discretion around accumulation of sentences is broad, and an appellate court will not interfere unless error in that exercise is established.
  • Where two offences are distinct in character, separated in time, and the second is committed while the offender is on bail for the first, some degree of accumulation will ordinarily be required to satisfy the principle of totality.
  • No error was established merely because the sentencing judge could theoretically have exercised the discretion differently, including by declining to accumulate at all.
  • The totality principle, as stated in Pearce v the Queen (1998) 194 CLR 610, requires that the combined effect of accumulated sentences reflect the overall criminality involved, and a failure to accumulate to any extent may itself constitute an error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 105A, 113(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2)

Cases:
- Pearce v the Queen (1998) 194 CLR 610
- R v Hemsley [2004] NSWCCA 228
- Regina v Jarman [2001] NSWCCA 178
- Regina v Letteri (NSWCCA, unreported, 18 March 1992)