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Court of Criminal Appeal 13 November 2008

R v PANTELAKIS

[2008] NSWCCA 265

Theft & propertyPublic order & justice offences
CROWN APPEAL PERIOD OF FULL TIME CUSTODY SERVED BEFORE THE ORDER

Citation: R v Pantelakis [2008] NSWCCA 265
Court: Court of Criminal Appeal, New South Wales
Date: 13 November 2008
Judge(s): Bell JA, Blanch J, Hall J

Background

The respondent, a 33-year-old man with a diagnosed schizophrenic illness, was committed for sentence in the District Court on a charge of aggravated robbery under s 95(1) of the Crimes Act 1900, carrying a maximum penalty of 20 years imprisonment. A second aggravated robbery, committed approximately one hour after the first, was also before the court on a Form 1 (a document listing related offences to be taken into account at sentencing). Both offences occurred in Marrickville in November 2007, when the respondent was overdue for his antipsychotic medication and had been using amphetamines and marijuana.

Psychiatric evidence before the sentencing judge, including a report from Dr Carne, established that the respondent's conduct had been driven by an acute psychosis caused by medication non-compliance and drug use. Since entering custody, the respondent had been placed on a new antipsychotic medication, Zeldox, which he tolerated without adverse side effects and which produced a marked improvement in his condition.

District Court Judge Woods QC adjourned the sentence proceedings under s 11 of the Crimes (Sentencing Procedure) Act 1999 to February 2009, granting the respondent conditional bail. The Crown appealed that adjournment order, arguing the objective seriousness of the offences required the imposition of a term of full-time custody.

  • Whether the sentencing judge erred in adjourning proceedings under s 11 of the Crimes (Sentencing Procedure) Act 1999 rather than imposing a sentence of full-time custody.
  • Whether the Crown had established error sufficient to justify appellate intervention in the exercise of the sentencing discretion.
  • What weight should be given to the respondent's psychiatric condition and its causal connection to the offences when assessing whether a custodial sentence was required.
  • Whether the period of full-time custody already served by the respondent following his arrest was a relevant consideration on a Crown appeal.

Decision

The Court of Criminal Appeal dismissed the Crown's appeal. Bell JA, with whom Blanch J and Hall J agreed, accepted that the Crown's contention had substance: the objective seriousness of the offences did weigh in favour of a full-time custodial sentence. However, the Court declined to find that the sentencing judge had committed an error sufficient to warrant intervention.

The Court placed considerable weight on the fact that, by the date of the s 11 adjournment order, the respondent had already served approximately ten months of full-time custody. That custody arose from a combination of parole revocation and the refusal of bail following his arrest for the subject offences. The Crown itself acknowledged it would have been within the sentencing judge's discretion to backdate any sentence to the date of arrest.

Bell JA also noted that the respondent's psychotic condition had a direct causal connection to his offending. That connection broadened the sentencing discretion available to the primary judge, compared with the position of a mentally sound offender. The cogent psychiatric evidence supporting the adjournment, taken together with the significant period of pre-sentence custody already served, meant the Court was not persuaded the Crown had made out its case for error.

The Court acknowledged the principle from R v Wright that an offender who recklessly brings on psychotic episodes may be regarded as a continuing danger to the community, reducing the mitigation otherwise available for mental illness. However, this principle did not, in the circumstances, displace the exercise of the sentencing discretion.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A sentencing court exercising discretion under s 11 of the Crimes (Sentencing Procedure) Act 1999 may adjourn proceedings to monitor an offender's response to psychiatric treatment, even where the offences are objectively serious.
  • The Court of Criminal Appeal confirmed that where a respondent's psychiatric condition has a direct causal connection to the offending, the sentencing discretion is somewhat broader than in the case of a mentally sound offender.
  • In dismissing the Crown's appeal, the Court treated the approximately ten months of full-time pre-sentence custody already served as a significant factor militating against intervention.
  • No error was established sufficient to justify appellate interference with the primary judge's exercise of the sentencing discretion, despite the Crown's argument that the objective seriousness of aggravated robbery called for full-time custody.
  • Under the principle in R v Wright, reckless non-compliance with medication that produces psychotic episodes may reduce or eradicate the mitigation otherwise arising from mental illness, but this consideration did not determine the outcome in these circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 95(1) (aggravated robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11 (adjournment for rehabilitation)
- Criminal Appeal Act 1912 (NSW), s 5D(1), s 2

Cases
- R v Hemsley [2004] NSWCCA 228 (principles for sentencing mentally disordered offenders)
- R v Palu [2002] NSWCCA 381; 134 A Crim R 174
- R v Wright (1997) 93 A Crim R 48 (reckless inducement of psychotic episodes and danger to community)