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Court of Criminal Appeal 10 June 2008

Hammond v R

[2008] NSWCCA 138

Assault & violenceDomestic & family violence
CRIMINAL LAW AGGRAVATED KIDNAPPING SENTENCING EARLY PLEA SENTENCE NOT MANIFESTLY EXCESSIVE

Citation: Hammond v R [2008] NSWCCA 138
Court: New South Wales Court of Criminal Appeal
Date: 10 June 2008
Judge(s): Spigelman CJ, Price J, McCallum J

Background

The appellant pleaded guilty in the District Court to aggravated kidnapping under s 86(2)(b) of the Crimes Act 1900. The victim was his wife of approximately eleven years, with whom he had been in a relationship for over twenty-two years. The circumstance of aggravation was the occasioning of actual bodily harm.

The offence occurred on the evening of 20 August 2006, shortly after the appellant had consumed significant quantities of alcohol and marijuana. He dragged his wife across the floor, stood on her head, punched and kicked her, and strangled her to the point of unconsciousness. She suffered multiple bruises, a suspected cracked rib, and a lump to the head.

In the District Court, Woods ADCJ sentenced the appellant to a non-parole period of five years with a total term of seven and a half years, commencing from the date of arrest. A twenty-five per cent discount was applied for the utilitarian value of the early guilty plea. The appellant sought leave to appeal on two grounds: that the sentence was manifestly excessive, and that the sentencing judge had failed to give adequate consideration to his mental health.

  • Whether the sentencing judge erred by failing to give adequate weight to the appellant's mental health condition, including a possible diagnosis of schizophrenia, when determining the objective seriousness of the offence.
  • Whether the head sentence and non-parole period were manifestly excessive in all the circumstances.

Decision

On the mental health ground, McCallum J (with whom Spigelman CJ and Price J agreed) found that there was no direct evidence establishing a causal connection between the appellant's psychiatric condition and the commission of the offence. A psychologist's report before the sentencing judge noted that, despite the appellant having ceased his anti-psychotic medication in the weeks before the offence, he had not described any thoughts or beliefs of a psychotic nature that might have been relevant to his conduct. This was taken to suggest not merely an absence of evidence but material pointing away from any such link.

Spigelman CJ added that no submission had been made at the sentencing hearing that a causal connection existed. The argument before the Court of Criminal Appeal was that the connection could be drawn by inference, but McCallum J rejected that submission: drawing such an inference would have been speculative on the evidence available. The Court also noted, following R v Engert, that even where a causal relationship between mental disorder and offending is established, a lesser sentence does not follow automatically.

The Court found that the sentencing judge had in fact taken the appellant's mental health into account to the extent that it was relevant. This was evident from the decision to adjust the standard ratio between the non-parole period and the total term, as a recognition of the appellant's psychological, mental, and alcohol-related difficulties and the need for supervision and rehabilitation.

On the manifest excess ground, the Court applied the test from Markarian v R and asked whether the result was unreasonable or plainly unjust. Comparing the circumstances with those in R v Newell, the Court concluded that, while the sentence sat towards the upper end of the range, it remained within the sentencing judge's discretion and was not manifestly excessive.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court is not required to draw an inference of causal connection between an offender's mental health condition and the commission of an offence where the available evidence does not support that inference, and drawing such an inference would be speculative.
  • The Court of Criminal Appeal confirmed that, even where a causal link between mental disorder and offending is established, no automatic reduction in sentence follows as a matter of course.
  • Adjustment of the ratio between the non-parole period and the total term can constitute an appropriate mechanism for giving effect to an offender's mental health difficulties, without those difficulties being treated as reducing the objective seriousness of the offence itself.
  • In dismissing the appeal, the Court applied the Markarian v R standard, which asks whether the sentence is unreasonable or plainly unjust, rather than whether the appellate court would have imposed the same sentence.
  • Where counsel at the sentencing hearing made no submission that a causal connection existed between the offender's psychiatric condition and the offence, an appellate court will be slow to find error in a sentencing judge's failure to address that connection expressly in the reasons.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 86(2)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- Markarian v R (2005) 228 CLR 357
- R v Engert (1995) 84 A Crim R 67
- R v Hemsley [2004] NSWCCA 228
- R v Newell [2004] NSWCCA 183
- R v Way (2004) 60 NSWLR 16