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Court of Criminal Appeal 2 October 2008

Heatley v R

[2008] NSWCCA 226

HomicideTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE MANSLAUGHTER ROBBERY ARMED WITH A DANGEROUS WEAPON PRINCIPLE OF TOTALITY GUIDELINE JUDGMENT R V HENRY

Citation: Heatley v R [2008] NSWCCA 226
Court: New South Wales Court of Criminal Appeal
Date: 2 October 2008
Judge(s): McClellan CJ at CL; Barr J; Price J

Background

The appellant had previously been acquitted on two armed robbery charges by reason of mental illness. After those acquittals he was detained at Kenmore Hospital pending a Mental Health Tribunal determination. He escaped from that facility and, in March 2002, committed an armed robbery at a Sydney bank, brandishing a shortened .22 calibre rifle and threatening staff and customers. He was later captured and, while in custody in 2004, killed another person.

The Crown presented an indictment containing two counts: murder and robbery armed with a dangerous weapon. The appellant pleaded not guilty to murder but guilty to manslaughter, a plea the Crown accepted on the basis of overwhelming medical evidence from both sides. He later pleaded guilty to the armed robbery count as well.

Whealy J in the Supreme Court sentenced the appellant to a non-parole period of eight years for manslaughter, with a balance of term of six years, and a fixed term of four years for the robbery. The sentences were structured to run consecutively in part. The appellant sought leave to appeal against those sentences on five grounds.

  • Whether the sentencing judge failed to give sufficient weight to the principle of totality and the principles in Pearce v R
  • Whether the judge failed to give adequate weight to the guideline judgment in R v Henry, the R v Ellis discount for voluntary disclosure, and delay in the sentencing process
  • Whether the finding of special circumstances was given consistent effect across both sentences
  • Whether the overall sentence was manifestly excessive
  • Whether the sentencing judge erred in relation to the armed robbery by: taking into account prior "not guilty by reason of mental illness" verdicts as criminal history; failing to give proper allowance for the guilty plea; characterising the offence as a planned and serious robbery; treating the use of a dangerous weapon as an aggravating factor; and failing to treat mental disability as a mitigating factor under the Crimes (Sentencing Procedure) Act

Decision

The Court granted leave to appeal but dismissed the appeal, upholding all aspects of the sentence imposed by Whealy J.

On the question of prior "criminal history," the Court acknowledged that the sentencing judge had erred in treating the previous not-guilty-by-reason-of-mental-illness verdicts as part of the appellant's criminal history. Verdicts of not guilty by reason of mental illness are acquittals, and the Court confirmed they cannot properly be treated as disclosing continuing disobedience to the law. However, the sentencing judge had himself recognised that this prior history was of only "limited relevance," and the error did not materially infect the outcome.

On the other grounds, the Court found that Whealy J had approached the sentencing task with great care across a complex and multi-day hearing. His Honour had appropriately considered the appellant's chronic psychotic disorder, acknowledging that while the mental illness did not appear to have directly caused the bank robbery, it remained relevant to questions of general deterrence. The Court accepted that personal deterrence remained an appropriate consideration in the context of an armed robbery.

Having regard to the objective seriousness of both offences and all relevant aggravating and mitigating factors, including the appellant's mental health, the Court was not persuaded that a lesser sentence was warranted in law within the meaning of s 6(3) of the Criminal Appeal Act 1912 and the principles in R v Simpson.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Verdicts of not guilty by reason of mental illness are acquittals and cannot properly be characterised as part of an offender's criminal history, nor as evidence of continuing disobedience to the law.
  • An error in treating such verdicts as relevant criminal history will not automatically vitiate a sentence if the sentencing judge treated that history as only marginally relevant and the overall sentence is otherwise soundly reasoned.
  • Where an offender's mental illness does not appear to have directly caused or contributed to an offence, it may still be relevant to reduce the weight given to general deterrence as a sentencing objective.
  • Personal deterrence remains a legitimate sentencing consideration even for offenders suffering from mental illness, particularly in the context of serious offences such as armed robbery.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence will only be set aside for manifest excess where some other less severe sentence was warranted in law, consistent with the test in R v Simpson and s 6(3) of the Criminal Appeal Act 1912.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(b), 24, 97(2)
- Crimes (Sentencing Procedure) Act, s 21A(3)(j)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- R v Ellis (1986) 6 NSWLR 603 (discount for voluntary disclosure)
- R v Henry (1999) 46 NSWLR 346 (robbery guideline judgment)
- Pearce v R (1998) 194 CLR 610 (totality and cumulation)
- R v Simpson (2001) 53 NSWLR 704 (manifest excess test)
- R v Engert (1996) 84 A Crim R 67
- R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- Ryan v The Queen (2001) 206 CLR 287
- R v Dodd (1991) 57 A Crim R 349
- R v Hemsley [2004] NSWCCA 228
- R v Pham [2005] NSWCCA 314
- Various other Court of Criminal Appeal decisions on armed robbery and mental illness in sentencing