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Court of Criminal Appeal 22 December 2008

Zaharos v R

[2008] NSWCCA 336

Assault & violence
CRIMINAL LAW APPEAL AND NEW TRIAL APPEAL AGAINST SENTENCE APPEAL BY CONVICTED PERSONS APPLICATIONS TO REDUCE SENTENCE WHEN GRANTED

Citation: Zaharos v R [2008] NSWCCA 336
Court: NSW Court of Criminal Appeal
Date: 22 December 2008
Judge(s): McClellan CJ at CL, Grove J, Howie J

Background

The applicant, a 64-year-old man with a long history of schizophrenia, pleaded guilty to malicious wounding following an incident at a seafood restaurant on 2 March 2007. A minor dispute about a meal escalated when the applicant produced a hunting knife and ultimately stabbed another diner twice, causing serious injuries including a perforated bowel and significant arm damage requiring surgery and a prolonged hospital stay.

The applicant had no prior criminal record. Evidence before the sentencing court established that he had been acutely mentally ill at the time of the offence, having ceased his antipsychotic medication. His symptoms were in remission by the time of sentencing following consistent treatment in custody.

The District Court sentenced the applicant to a total term of five years and two months, with a non-parole period of three years and ten months. He sought leave to appeal that sentence to the Court of Criminal Appeal.

  • Whether the sentencing judge erred in his assessment of the causal connection between the applicant's mental illness and the commission of the offence
  • Whether the sentencing judge erred in his approach to special circumstances under the sentencing legislation, which can justify adjusting the ratio between the non-parole period and the total sentence
  • Whether the 20 per cent discount applied for the guilty plea was adequate
  • Whether the sentence was manifestly excessive in all the circumstances

Decision

Mental illness and causal connection: The Court of Criminal Appeal upheld the sentencing judge's finding that the applicant understood what he was doing and appreciated the gravity of his actions. The psychiatrist's account had relied on a version of events inconsistent with the agreed facts, and the sentencing judge was entitled to reject the claim that the applicant was acting under persecutory beliefs that negated his moral awareness. Accordingly, the need for general deterrence was not diminished on that basis.

Special circumstances and supervision: The Court found that special circumstances did exist, contrary to the approach taken below. Given the applicant's history of ceasing medication and the resulting relapses, a longer period of post-release supervision was warranted to support his ongoing treatment and reduce the risk of further offending. This justified adjusting the balance between the non-parole period and the additional term.

Manifest excess: The Court accepted that the sentence was manifestly excessive. The maximum penalty for the offence was seven years, considerably lower than the 25-year maximum for the more serious charge that was not pressed. While the injuries were serious, they did not place the offending at the upper end of the range for malicious wounding. Taking into account the applicant's lack of prior criminal history and the nature of the offence, the starting point implied by the original sentence was too high. The 20 per cent plea discount was accepted for the purpose of resentencing, though the Court noted reservations about its adequacy.

Resentencing: The Court resentenced the applicant to a non-parole period of two years and nine months, with an additional term of one year and three months, for a total sentence of four years.

Orders Made

  • Leave to appeal granted and the appeal upheld
  • The sentence imposed in the District Court quashed
  • The applicant resentenced to a non-parole period of 2 years and 9 months commencing 2 March 2007, expiring 1 December 2009, with an additional term of 1 year and 3 months commencing 2 December 2009 and concluding 1 March 2011

Key Takeaways

  • A sentencing judge may reject a psychiatric opinion where the factual account provided to the psychiatrist is inconsistent with the agreed facts of the offence; the Court of Criminal Appeal confirmed that finding was soundly based here.
  • Where an offender with mental illness understood what he was doing and appreciated the gravity of his actions, the ordinary weight given to general deterrence is not reduced on account of that illness.
  • Special circumstances justifying an extended additional term can arise from a need for lengthy post-release supervision, particularly where an offender's history of medication non-compliance creates ongoing risk.
  • In assessing whether a sentence is manifestly excessive, the Court considered the applicable maximum penalty, the objective seriousness of the particular offending relative to the full range, and the offender's lack of prior criminal history.
  • Reservations about the adequacy of a guilty plea discount do not necessarily result in its revision on appeal; the Court here accepted the 20 per cent discount for resentencing purposes despite noting its concerns.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33 and 35(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- R v Wright (1997) 93 A Crim R 48
- R v Henry & Ors [1999] NSWCCA 111
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- R v Dib [2003] NSWCCA 117
- R v SY [2003] NSWCCA 291
- R v Fidow [2004] NSWCCA 172
- R v Hemsley [2004] NSWCCA 228
- R v Matthews [2004] NSWCCA 112; (2004) 145 A Crim R 445
- Sullivan v R; Skillin v R [2008] NSWCCA 296