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Court of Criminal Appeal 16 April 2008

HEINE v R

[2008] NSWCCA 61

Domestic & family violence
CRIMINAL LAW SENTENCING APPEAL AGAINST SEVERITY OF SENTENCE OFFENDER SUFFERING FROM MENTAL DISORDER USE OF SENTENCING STATISTICS NO ERROR DEMONSTRATED

Citation: Heine v R [2008] NSWCCA 61
Court: NSW Court of Criminal Appeal
Date: 16 April 2008
Judge(s): Bell JA; Simpson J; Adams J

Background

The appellant pleaded guilty in the Local Court to detaining a person with intent to obtain advantage, contrary to s 86(1)(b) of the Crimes Act 1900 (NSW). The offence involved the appellant restraining his wife in their home for several hours during the early morning of 27 August 2006, tying her to the bed, producing kitchen knives, threatening to kill her, and filming his interrogation of her. His wife was only freed after the appellant's brother arrived and intervened.

In the District Court, Judge Sweeney sentenced the appellant to four years' imprisonment with a non-parole period of two years, backdated by one day. The maximum penalty for the offence is 14 years' imprisonment.

The appellant sought leave to appeal against the severity of the sentence. His case rested significantly on psychiatric evidence, with reports from both a forensic psychiatrist and his treating psychiatrist tendered at the sentence hearing. The central argument was that the sentencing judge had not given sufficient weight to his mental disorder in reducing his moral culpability.

  • Whether the sentencing judge erred in her assessment of the psychiatric evidence and its effect on the appellant's moral culpability.
  • Whether the judge placed insufficient weight on the appellant's mental disorder as a mitigating factor.
  • Whether the sentence was manifestly excessive, having regard to the appellant's mental condition and other circumstances.
  • Whether the judge's use of sentencing statistics disclosed error.

Decision

The Court of Criminal Appeal found no error in the sentencing judge's approach. While the appellant's mental condition was accepted as causally related to the offence, the psychiatric evidence did not establish a significant degree of compromise in his ability to appreciate the gravity of his conduct. The judge was entitled to treat the degree of sentence moderation warranted by mental disorder as a discretionary determination and to weigh it against other relevant factors.

The Court noted that the offence was purposive in nature: the appellant had tied up his wife in order to force her to acknowledge what he perceived as an affair. The judge was entitled to take into account that the appellant continued to blame the victim, a stance he maintained even at the time of his psychiatric interview when he was no longer acutely symptomatic and was responding well to medication. The presence of limited remorse was a legitimate consideration alongside the psychiatric evidence.

The Court applied the principle from Makarian v R (2005) 228 CLR 357 that sentencing is a discretionary judgment and there is no single correct outcome. Consistent with the approach in R v Engert (1995) 84 A Crim R 67, the presence of a mental disorder does not produce automatic sentencing consequences. Each case requires a discretionary assessment in light of its own facts and the purposes of sentencing.

The Court concluded that the judge had given detailed and proper consideration to the psychiatric material, had not misstated the applicable principles, and that the sentence was not manifestly excessive. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • The appeal is dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a mental disorder, even one causally connected to the offence, does not automatically result in substantial mitigation of sentence. The weight to be given to such a condition remains a discretionary judgment for the sentencing court.
  • Applying R v Engert, the Court reiterated that it is erroneous in principle to treat particular factual circumstances, including the presence of mental illness, as producing fixed or automatic sentencing outcomes.
  • Where psychiatric evidence does not establish significant compromise of the offender's ability to appreciate the gravity of the conduct, the scope for mitigation on that basis is correspondingly limited.
  • An offender's continued tendency to blame the victim, maintained even after acute psychiatric symptoms had resolved, was a factor the sentencing court was entitled to weigh against the psychiatric mitigation claimed.
  • No error was established merely because the appellant argued a different weighting of the evidence. The absence of any demonstrated error in principle or fact precluded intervention on a severity appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 86(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Makarian v R (2005) 228 CLR 357
- R v Engert (1995) 84 A Crim R 67
- R v Allen [2008] NSWCCA 11
- R v Bloomfield (1998) 44 NSWLR 734
- R v Fahda [1999] NSWCCA 267
- R v Hamid [2006] NSWCCA 302
- R v Israil [2002] NSWCCA 255
- R v Lee [2003] NSWCCA 391
- R v Pearson [2004] NSWCCA 129
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Wright (1997) 93 A Crim R 48