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Court of Criminal Appeal 30 September 2009

Munn v R

[2009] NSWCCA 218

Assault & violenceDomestic & family violence
CRIMINAL LAW SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Munn v R [2009] NSWCCA 218
Court: New South Wales Court of Criminal Appeal
Date: 30 September 2009
Judge(s): Spigelman CJ; McClellan CJ at CL; RA Hulme J

Background

The appellant had an extensive criminal history dating back to 1995, including numerous violent offences, many of which had been dealt with under the Mental Health Act rather than resulting in custodial sentences. He had a documented acquired brain injury affecting impulse control, a history of drug-induced psychosis, and had received multiple involuntary and voluntary psychiatric admissions.

The appellant pleaded not guilty to charges of attempted strangulation with intent to murder and related counts, but guilty to assault occasioning actual bodily harm. A jury convicted him of attempted strangulation with intent to maliciously inflict grievous bodily harm under s 37 of the Crimes Act 1900. The offence involved a sustained, determined attack on a former partner: the appellant maintained his grip on her throat as her face turned purple and she bled from her nose and eyes, ignoring her pleas and the intervention of bystanders.

In the District Court, Judge Ainslie-Wallace sentenced the appellant to 9 years imprisonment with a non-parole period of 5 years and 6 months for the strangulation offence, and a fixed term of 18 months for the assault occasioning actual bodily harm, producing an overall sentence of 10 years with a non-parole period of 6 years and 6 months. The appellant sought leave to appeal, contending the sentence was manifestly excessive.

  • Whether the sentencing judge erred in her approach to the nature and extent of injuries sustained by the victim, as a factor going to the objective seriousness of the s 37 offence
  • Whether the sentence was manifestly excessive, having regard to the appellant's mental condition, acquired brain injury, impulsivity, and remorse

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the exercise of the sentencing discretion.

On the question of objective seriousness, Hulme J (with whom McClellan CJ at CL agreed) found that the sentencing judge had correctly assessed the offence as above mid-range in seriousness. The judge had taken the appellant's psychological and emotional condition into account in three ways favourable to him. The Court found that, absent those mitigating factors, a more severe sentence would have been warranted.

The Court accepted that the appellant's acquired brain injury meant he was not an appropriate vehicle for general deterrence, and that his mental condition moderated (to a degree) the objective seriousness of the offending. However, the Court was equally clear that the serious risk he posed to the community, as identified by expert psychiatric evidence, weighed heavily in the sentencing exercise.

Spigelman CJ added separate observations about the broader sentencing context. His Honour noted that the repeated application of the Mental Health Act provisions throughout the appellant's history had meant the community was not adequately protected. Drawing on the High Court's decision in Veen v The Queen (No 2), his Honour confirmed that retribution, personal deterrence, and protection of society were entitled to significantly increased weight where an offender demonstrates a continuing attitude of disobedience to the law. Those considerations supported the sentence imposed, reinforcing that it was well within the proper range.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court may moderate the objective seriousness of an offence where an offender's mental condition or acquired brain injury contributed to the conduct, but that moderation does not require a reduction so substantial as to render the resulting sentence manifestly excessive.
  • Where an offender's psychiatric history has repeatedly led to Mental Health Act dispositions rather than custodial sentences, a sentencing court is entitled to treat protection of the community as a weighty consideration in fixing the appropriate sentence.
  • Under the principle in Veen v The Queen (No 2), proportionality does not prevent a court from giving significantly increased weight to retribution, personal deterrence, and community protection where an offender displays a continuing attitude of disobedience to the law.
  • Personal deterrence, as confirmed by the Court of Criminal Appeal, can encompass providing an incentive for an offender to address underlying mental health and substance dependency issues while in custody.
  • No error was established in the sentencing judge's treatment of the victim's injuries, the appellant's impulsivity, his brain injury, or his remorse, all of which the judge had properly considered in the appellant's favour.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 29, 35, 37, 59(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Mental Health Act (NSW)

Cases
- Veen v The Queen (No 2) (1987) 164 CLR 465
- R v Engert (1995) 84 A Crim R 67
- R v Hemsley [2004] NSWCCA 228
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Mitchell; R v Gallagher [2007] NSWCCA 296
- R v MW [2007] NSWCCA 291
- R v Woods [2009] NSWCCA 55