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Court of Criminal Appeal 16 February 2010

Binnie v R

[2010] NSWCCA 14

Assault & violence
CRIMINAL LAW SENTENCE NON PAROLE PERIOD OR MINIMUM TERM AGGRAVATING OR MITIGATING FACTORS CRIMINAL LAW

Citation: Binnie v R [2010] NSWCCA 14
Court: NSW Court of Criminal Appeal
Date: 16 February 2010
Judges: McClellan CJ at CL; Simpson J; Hidden J

Background

The applicant, a 27-year-old man with no prior convictions, pleaded guilty to maliciously inflicting grievous bodily harm with intent under s 33 of the Crimes Act 1900. The offence arose from a night of heavy drinking during which he followed his estranged girlfriend and, armed with a small knife he had kept in his car, attacked a male passenger from her vehicle outside the man's home. The victim sustained deep stab wounds to the neck and torso, required a three-hour operation, and was hospitalised for nearly two weeks.

The applicant presented a number of mitigating factors at the sentencing hearing in the District Court. He had reported the offence to police immediately, pleaded guilty at the first opportunity, and had no criminal history. Expert evidence from a psychologist and a psychiatrist confirmed he was suffering from significant depression at the time of the offence, including acute depressive symptoms and a history of a suicide attempt.

The District Court sentenced him to a non-parole period of four years with a balance of term of two years and six months, a total of six years and six months. The applicant sought leave to appeal, arguing that the sentence failed to give adequate weight to his mental illness and his good prospects of rehabilitation.

  • Whether the sentencing judge erred by failing to reduce the weight given to general deterrence in light of the applicant's diagnosed mental illness at the time of the offence
  • Whether the sentencing judge gave adequate weight to the applicant's prospects of rehabilitation
  • Whether the resulting sentence was manifestly excessive having regard to those mitigating factors

Decision

The Court of Criminal Appeal found that the sentencing judge had fallen into error by treating the applicant's mental illness as having no significance to the sentencing exercise. Both expert reports, from a psychologist and a psychiatrist, were accepted by the sentencing judge and established that the applicant was suffering from serious depression at the time of the offending. The established principle that mental illness can reduce the weight to be given to general deterrence had therefore been misapplied.

On the question of rehabilitation, the Court noted that the sentencing judge had, at an early stage in the judgment, found the applicant unlikely to reoffend. That finding was not clearly reflected in the final sentence. While it could not be said the judge entirely overlooked that conclusion, the weight ultimately afforded to it was not discernible from the reasons.

The Court accepted that the offence was serious. The applicant had armed himself, pursued the victim, and carried out a vicious attack. The sentencing judge had appropriately found the offence fell below the midrange of objective seriousness, a finding the Crown did not challenge on appeal. Taking into account the lesser significance of general deterrence given the applicant's mental state, the finding on rehabilitation, the absence of any prior criminal record, remorse, and the utilitarian value of the early guilty plea, the Court concluded the sentence was excessive and warranted intervention.

Special circumstances (justifying a longer than usual balance of term, to allow for adequate supervised release and rehabilitation) had been found at first instance, and the Court of Criminal Appeal maintained that finding in resentencing.

Orders Made

  • Leave to appeal granted and appeal upheld
  • The original sentence quashed
  • In lieu, the applicant sentenced to a non-parole period of 3 years and 6 months commencing 6 October 2007 and expiring 5 April 2011, with a balance of term of 2 years and 6 months expiring 5 October 2013

Key Takeaways

  • Diagnosed mental illness at the time of an offence can reduce the weight a sentencing court gives to general deterrence, even where the offence is objectively serious.
  • Where expert evidence of a mental disorder has been accepted by the sentencing judge, that evidence must be meaningfully reflected in the sentence; treating it as having no significance constitutes an error in the exercise of the sentencing discretion.
  • A finding that an offender has good prospects of rehabilitation and is unlikely to reoffend must be given discernible weight when the final sentence is determined; a finding that disappears without trace in the outcome may signal a sentencing error.
  • The Court of Criminal Appeal confirmed that an offence falling below the midrange of objective seriousness, combined with strong subjective features, can warrant a sentence materially below the standard non-parole period (here seven years for the relevant offence).
  • In resentencing, the Court maintained the finding of special circumstances, preserving a longer supervision period on release, consistent with the applicant's identified rehabilitation needs.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33 (maliciously inflict grievous bodily harm with intent; maximum 25 years; standard non-parole period 7 years)

Cases
- Du Randt v R [2008] NSWCCA 121
- Leach v R (2008) NSWCCA 73
- R v Anderson (1981) VR 155; (1980) 2 A Crim R 279
- R v Fahda (1999) NSWCCA 267
- R v Israil (2002) NSWCCA 255
- R v Letteri (unreported, NSWCCA, 18 March 1992)
- R v Pitt [2005] NSWCCA 304