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Court of Criminal Appeal 21 April 2009

Troy LITTLE v R

[2009] NSWCCA 113

Assault & violenceDomestic & family violence
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER ERRONEOUS

Citation: Troy Little v R [2009] NSWCCA 113
Court: NSW Court of Criminal Appeal
Date: 21 April 2009
Judge(s): Grove J, Howie J, Buddin J

Background

The appellant pleaded guilty in the District Court to three offences arising from an incident in which he entered his former girlfriend's unit without permission, slapped her, bound her hands with cable ties, took her phone, and threatened to kill himself before eventually leaving. The offences were: detaining a person for advantage (maximum 14 years), common assault (maximum 2 years), and aggravated breaking and entering with intent to commit a serious indictable offence (maximum 14 years).

Judge English sentenced the appellant to concurrent terms, with a non-parole period of 12 months for each of the two serious offences and a fixed 12-month term for the assault. All sentences ran from 14 August 2008, meaning the appellant was due for release to parole in August 2009.

At sentencing, the defence tendered a neuropsychological report suggesting the appellant had suffered mild generalised brain injury, consistent with a history of sprint car racing crashes. The sentencing judge rejected the report's significance, and the appellant appealed on that basis.

  • Whether the sentencing judge erred in rejecting the psychologist's opinion that the appellant's test results demonstrated deterioration in cognitive functioning, on the basis that no supporting medical evidence (such as MRI or CT results) was provided.
  • Whether the sentencing judge erred in declining to treat that cognitive deterioration as a mitigating circumstance.
  • Whether the sentencing judge erred in failing to find that the offences were unplanned (this ground was abandoned before the hearing).

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Howie J (with Grove and Buddin JJ agreeing) found no error in the sentencing judge's treatment of the psychological evidence. The judge had not rejected the report entirely but had properly noted its limitations, including the absence of corroborating medical imaging and the psychologist's own acknowledgment that MRI and CT scans might not detect the injury described. The judge was entitled to be cautious about the weight to place on the report in those circumstances.

More significantly, the Court found that even accepting the psychologist's findings, the cognitive deterioration described did not substantially explain or mitigate the appellant's conduct. The ERISP interview with police showed an articulate man who understood what he had done and why, rather than someone exhibiting poor impulse control. The offences also showed clear signs of planning: the appellant knew the complainant's routine, arrived precisely when she came home, and brought both cable ties and a printout from her computer.

The Court rejected the argument that the brain injury was of a kind that warranted reduced weight to be given to general deterrence. Principles from cases such as R v Engert and R v Hemsley, which contemplate reduced emphasis on general deterrence where a mental condition significantly affects the offender's culpability, did not apply here. The condition was neither severe enough nor sufficiently connected to the offending behaviour to engage those principles. Not every abnormal mental condition will trigger that sentencing approach.

Howie J described the sentences as moderate, if not lenient, noting they already gave limited effect to general deterrence. The Court was not persuaded that any lesser sentence was warranted.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge may properly limit the weight given to a neuropsychological report where no corroborating medical evidence is produced and where the psychologist acknowledges the limits of the testing methodology.
  • Under the principles in R v Engert and R v Hemsley, a mental condition will only reduce the emphasis placed on general deterrence in sentencing where that condition is of sufficient severity and has a meaningful connection to the offending conduct. The presence of some cognitive deterioration is not enough on its own.
  • In dismissing the appeal, the Court observed that the offences displayed clear elements of planning, which weakened the argument that impaired impulse control explained the appellant's behaviour.
  • No error was established in the sentencing judge's refusal to treat mild generalised brain injury as a significant mitigating factor where the evidence of impaired functioning was not borne out by the manner in which the offences were committed or by the offender's conduct during police interview.
  • As confirmed in R v Dagwell, not every abnormal mental condition will engage the sentencing principles that reduce the weight of general deterrence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 86(1)(b), 111(2)

Cases:
- R v Engert (1996) 84 A Crim R 67
- R v Hemsley [2004] NSWCCA 228
- R v Dagwell [2006] NSWCCA 98