Citation: Burns v R [2008] NSWCCA 260
Court: NSW Court of Criminal Appeal
Date: 19 November 2008
Judge(s): McClellan CJ at CL, Simpson J, McCallum J
Background
The appellant pleaded guilty in the Dubbo Local Court to one count of attempted armed robbery and one count of aggravated carjacking, arising from an incident in which he entered a post office armed with a replica pistol, failed to obtain any money, and then seized a car to escape. Both offences attracted substantial maximum penalties (25 years and 14 years imprisonment respectively). The appellant was 35 years old at the time of sentencing, had an extensive criminal history, and had been diagnosed with drug-induced psychosis with a differential diagnosis of schizophrenic illness.
In the District Court, Freeman DCJ sentenced the appellant to a 3-year fixed term for the carjacking and a total term of 7½ years (non-parole period of 4½ years, balance of term of 3 years) for the attempted armed robbery, with the sentences accumulated by 12 months. His Honour declined to find special circumstances that would have justified departing from the standard one-third ratio between the non-parole period and the balance of term. The aggregate sentence was a non-parole period of 5½ years and a total term of 8½ years.
The appellant sought leave to appeal against sentence on three grounds: that the balance of term for the armed robbery offence improperly exceeded one-third of the non-parole period; that the sentencing judge failed to give adequate weight to his mental illness; and that the overall sentence was manifestly excessive.
Legal Issues
- Whether the balance of term imposed for the attempted armed robbery offence exceeded the statutory one-third ratio without a valid finding of special circumstances
- Whether the sentencing judge erred by failing to give sufficient weight to the appellant's mental illness when assessing his moral culpability
- Whether the overall sentence was manifestly excessive, having regard to the guideline judgment in R v Henry
Decision
Balance of term. The Court found that the sentencing judge had made what appeared to be a mathematical error. Although his Honour expressly declined to find special circumstances, the balance of term of 3 years imposed for the attempted armed robbery exceeded one-third of the 4½-year non-parole period. The permissible balance, absent a special circumstances finding, was 22½ months, not 3 years. The Court corrected this error by varying the balance of term to 22 months.
Mental illness. The Court rejected the argument that the sentencing judge gave insufficient weight to the appellant's mental illness. McCallum J held that a causal relationship between the mental illness and the offending must be established before reduced moral culpability can be found, and on the evidence before the sentencing judge that relationship was unclear. The appellant's suggestion that he believed a passing schoolgirl had signalled him to proceed with the robbery came only from a history provided to the psychiatrist, and the extent to which drug use rather than mental illness drove the offending remained uncertain. The sentencing judge's balancing of all relevant factors, including the danger the appellant posed to the community, disclosed no error.
Manifest excess. The Court found the sentence was harsh but within the sentencing judge's discretion, particularly once the balance of term was corrected. The reliance on the guideline judgment in R v Henry was noted to be of limited assistance given the appellant's age and lengthy history of serious offending, circumstances that distinguished him markedly from the cases underlying that guideline.
Orders Made
- Extension of time within which to apply for leave to appeal granted
- Leave to appeal granted
- Appeal allowed in part: the sentence for attempted armed robbery varied to a non-parole period of 4½ years commencing 23 February 2006 and expiring 22 August 2010, with a balance of term of 22 months expiring 22 June 2012
- The sentence for aggravated carjacking and the aggregate structure were otherwise undisturbed
Key Takeaways
- Under the Crimes (Sentencing Procedure) Act 1999, the balance of term must not exceed one-third of the non-parole period unless special circumstances are found; a sentencing judge who expressly declines to find special circumstances is bound by that ratio, and a balance of term exceeding it constitutes an error even if the judge did not intend to depart from the standard.
- A causal relationship between an offender's mental illness and the commission of the offence must be established before reduced moral culpability can be grounded in that illness; the mere existence of a psychiatric diagnosis does not automatically produce a lesser sentence.
- Where evidence of mental illness is mixed with evidence of self-induced drug intoxication, the sentencing court is not required to give the mental illness issue decisive weight, particularly where the causal link to the offending remains ambiguous.
- In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that a guideline judgment such as R v Henry does not operate as a formula applicable to every case; an offender's age, criminal history, and individual circumstances may substantially diminish its utility as a comparator.
- No error was established in the sentencing judge's refusal to find special circumstances based on rehabilitation needs, where his Honour accepted the need for rehabilitation but found no real prospect of it occurring.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 97(2), 154C(2), 33A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 59
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW), s 60
Cases
- R v Close (1993) 65 A Crim R 55
- R v Hemsley [2004] NSWCCA 228
- R v Henry (1999) 46 NSWLR 436
- R v Welsh (1996) 90 A Crim R 364