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Court of Criminal Appeal 30 October 2008

NGUYEN, Duc Quang v R

[2008] NSWCCA 219

Also reported as 189 A Crim R 454
Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE FINDING OF FUTURE RISK TO COMMUNITY WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: NGUYEN, Duc Quang v R [2008] NSWCCA 219
Court: NSW Court of Criminal Appeal
Date: 30 October 2008
Judge(s): McClellan CJ at CL, Hidden J, Fullerton J

Background

The appellant pleaded guilty in the District Court at Campbelltown to a single count of break and enter with intent to commit larceny in circumstances of aggravation, contrary to s 112(2) of the Crimes Act 1900. The aggravating circumstance arose because he bit and injured the home occupier who physically restrained him after discovering him hiding in a bedroom wardrobe. The appellant, aged 35 at the time of the offence, had been diagnosed with schizophrenia in 1999 and was on parole when the offence was committed.

The sentencing judge imposed a non-parole period of 3 years and 9 months with a balance of term of 1 year and 3 months, backdated to the date of custody. The overall sentence was structured below the 5-year standard non-parole period, which the judge treated as a reference point rather than a mandatory starting figure.

The appellant sought leave to appeal, arguing that the sentencing judge had erred in weighing his criminal record and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in the weight given to the appellant's prior criminal record, particularly by insufficiently accounting for the alleged causal connection between his schizophrenia and his offending history.
  • Whether the sentence imposed was manifestly excessive, including by reference to Judicial Commission statistics showing comparable sentences.

Decision

On the first ground, the Court examined the extent to which the appellant's mental illness could be said to have caused his prior offending. The only evidence came from a forensic psychiatrist who reported the appellant's own claim that his past offences had been driven by auditory command hallucinations. However, the psychiatrist offered no independent corroboration of that account, and no evidence from treating doctors or records elaborating on the severity of the condition was tendered. The Court found it was open to the sentencing judge to treat the causal link between mental illness and prior offending as unestablished for sentencing purposes.

The Court acknowledged the general principle that criminal history may warrant less weight where offending is genuinely connected to a mental illness. It also recognised that mental illness can simultaneously reduce moral culpability and inform assessments of future risk to the community. Here, however, where an adequate causal connection was not established, the sentencing judge was entitled to treat the criminal record as relevant to both the protection of the community and the risk of reoffending.

On the second ground, the Court considered the appellant's reliance on Judicial Commission statistics, which showed the non-parole period fell at the higher end of the distribution for comparable offences. The Court applied the principle from Ma and Pham v R that statistics alone do not demonstrate sentencing error, particularly where they provide no detail about the individual cases they reflect. The Court also noted that the sentence subsumed the balance of the appellant's parole from an earlier term, making straightforward statistical comparison unreliable. Given the appellant's record and the community protection rationale available under s 3A of the Crimes (Sentencing Procedure) Act 1999, the non-parole period was found to sit within an available sentencing range.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Where a defendant claims that prior offending was caused by a mental illness, mere self-report to a forensic psychiatrist, without corroborating evidence from treating practitioners or clinical records, may be insufficient to establish that causal connection for sentencing purposes.
  • The Court of Criminal Appeal confirmed that mental illness in a sentencing context can pull in two directions: it may reduce moral culpability for the offence charged, but it may also support a finding that the offender poses a continuing risk to the community, particularly where a pattern of offending has emerged.
  • Judicial Commission statistics do not, of themselves, establish that a sentence is manifestly excessive. The range of available sentences extends to the statutory maximum, and statistics carry limited weight without details of the individual cases they reflect.
  • Protection of the community is a legitimate sentencing purpose under s 3A of the Crimes (Sentencing Procedure) Act 1999, and it was open to the sentencing court to give that purpose significant weight given the appellant's extensive and escalating criminal history.
  • In dismissing the appeal, the Court of Criminal Appeal found the non-parole period within the available range when the standard non-parole period of 5 years was used as a reference point, consistent with the approach established in R v Way.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 105A(1), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, Division 1 of Part 4

Cases
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Ma and Pham v R [2007] NSWCCA 240
- Allen v R [2008] NSWCCA 11
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Arnold [2004] NSWCCA 294
- R v Haines [2004] NSWCCA 294
- R v Hemsley [2004] NSWCCA 228
- R v Hughes [2005] NSWCCA 117
- R v Pham [2005] NSWCCA 314
- R v Wicks [2005] NSWCCA 213